Text: House Hearing, 116th Congress — THE IRREPARABLE ENVIRONMENTAL AND CULTURAL IMPACTS OF THE PROPOSED RESOLUTION COPPER MINING OPERATION
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[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE IRREPARABLE ENVIRONMENTAL AND
CULTURAL IMPACTS OF THE PROPOSED
RESOLUTION COPPER MINING OPERATION
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
Thursday, March 12, 2020
Serial No. 116-34
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
Committee address: http://naturalresources.house.gov
U.S. GOVERNMENT PUBLISHING OFFICE
40-520 PDF WASHINGTON : 2020
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
DEBRA A. HAALAND, NM, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
ROB BISHOP, UT, Ranking Republican Member
Grace F. Napolitano, CA Don Young, AK
Jim Costa, CA Louie Gohmert, TX
Gregorio Kilili Camacho Sablan, Doug Lamborn, CO
CNMI Robert J. Wittman, VA
Jared Huffman, CA Tom McClintock, CA
Alan S. Lowenthal, CA Paul A. Gosar, AZ
Ruben Gallego, AZ Paul Cook, CA
TJ Cox, CA Bruce Westerman, AR
Joe Neguse, CO Garret Graves, LA
Mike Levin, CA Jody B. Hice, GA
Debra A. Haaland, NM Aumua Amata Coleman Radewagen, AS
Joe Cunningham, SC Daniel Webster, FL
Nydia M. Velazquez, NY Liz Cheney, WY
Diana DeGette, CO Mike Johnson, LA
Wm. Lacy Clay, MO Jenniffer Gonzalez-Colon, PR
Debbie Dingell, MI John R. Curtis, UT
Anthony G. Brown, MD Kevin Hern, OK
A. Donald McEachin, VA Russ Fulcher, ID
Darren Soto, FL
Ed Case, HI
Steven Horsford, NV
Michael F. Q. San Nicolas, GU
Matt Cartwright, PA
Paul Tonko, NY
Jesus G. ``Chuy'' Garcia, IL
David Watkins, Chief of Staff
Sarah Lim, Chief Counsel
Parish Braden, Republican Staff Director
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
RUBEN GALLEGO, AZ, Chair
PAUL COOK, CA, Ranking Republican Member
Darren Soto, FL Don Young, AK
Michael F. Q. San Nicolas, GU Aumua Amata Coleman Radewagen, AS
Debra A. Haaland, NM John R. Curtis, UT
Ed Case, HI Kevin Hern, OK
Matt Cartwright, PA Vacancy
Jesus G. ``Chuy'' Garcia, IL Rob Bishop, UT, ex officio
Raul M. Grijalva, AZ, ex officio
Hearing held on Thursday, March 12, 2020......................... 1
Statement of Members:
Gallego, Hon. Ruben, a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Allis, Kevin, Chief Executive Officer, National Congress of
American Indians, Washington, DC........................... 12
Prepared statement of.................................... 13
Chavez, Roy, Chair, Concerned Citizens and Retired Miners
Coalition, Superior, Arizona............................... 49
Prepared statement of.................................... 51
Emerman, Steven, Owner, Malach Consulting, Spanish Fork, Utah 24
Prepared statement of.................................... 26
Nosie, Hon. Wendsler, Sr., Founder, Apache Stronghold, San
Carlos, Arizona............................................ 8
Prepared statement of.................................... 10
Pike, Naelyn, Youth Organizer, Apache Stronghold, San Carlos,
Prepared statement of.................................... 6
Wells, James, Chief Operating Officer, L. Everett &
Associates, Santa Barbara, California...................... 39
Prepared statement of.................................... 40
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 128
Inter Tribal Association of Arizona, Testimony for the Record 60
National Association of Tribal Historic Preservation
Officers, Letter to Rep. Gallego, March 10, 2020........... 114
San Carlos Apache Tribe, Testimony for the Record by Chairman
Terry Rambler.............................................. 115
Southside Presbyterian Church, Letter to Reps. Grijalva and
White Mountain Apache Tribe, Letter to Natural Resources
Committee from Gwendena Lee-Gatewood, Tribal Chairwoman,
March 10, 2020............................................. 127
OVERSIGHT HEARING ON ``THE IRREPARABLE ENVIRONMENTAL AND CULTURAL
IMPACTS OF THE PROPOSED RESOLUTION COPPER MINING OPERATION''
Thursday, March 12, 2020
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
Committee on Natural Resources
The Subcommittee met, pursuant to notice, at 9:01 a.m., in
room 1324, Longworth House Office Building, Hon. Ruben Gallego
[Chairman of the Subcommittee] presiding.
Present: Representatives Gallego, Soto, Haaland, Garcia,
Mr. Gallego. The Subcommittee for Indigenous Peoples of the
United States will now come to order. The Subcommittee is
meeting today to hear testimony on ``The Irreparable
Environmental and Cultural Impacts of the Proposed Resolution
Copper Mining Operation.'' Under Committee Rule 4(f), any oral
opening statements at hearings are limited to the Chair and the
Ranking Minority Member. This will allow us to hear from our
witnesses sooner and help Members to keep their schedules.
Therefore, I ask unanimous consent to allow the Members'
opening statements be made part of the hearing record if they
are submitted to the Clerk by 5 p.m. today, or the close of the
hearing, whichever comes first.
Hearing no objection, so ordered.
STATEMENT OF THE HON. RUBEN GALLEGO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Gallego. I want to thank all of our witnesses for being
here today, especially considering the difficulties the
Coronavirus outbreak has caused for all of us.
Today, we will examine the detrimental effects that the
proposed mining operations will have on tribal historical,
cultural, and sacred sites located in Southeastern Arizona.
A few weeks ago, we had a hearing on the destruction of
sacred sites that is occurring during the construction of the
border wall on the Southern border. Unfortunately, the
destruction of those sacred sites is not a unique case.
We are here again today to discuss a disregard for the
rights of Native Americans and the destruction of their sacred
sites--this time for the construction of a new dangerous and
destructive copper mine in the town of Superior, Arizona.
The language that enabled this mining operation has a
history dating back to the 108th Congress in 2005. And tribal
opposition has been there since the very beginning. That is
because the land that this mine would destroy includes the
Chi'Chil Bildagoteel Historic District, known more broadly by
its English translation, ``Oak Flat''.
Located in Tonto National Forest, the historic Oak Flat
area is the sacred site to many tribal nations where they
conduct religious and cultural ceremonies and gather
traditional medicines and food. This land is sacred not only to
the San Carlos Apache Tribe, which is represented here today,
but to the Tonto Apache Tribe, the White Mountain Apache Tribe,
the Yavapai-Apache Nation, the Yavapai-Prescott Indian Tribe,
the Gila River Indian Community, the Salt River Pima-Maricopa
Indian Community, the Hopi Tribe, and the Pueblo of Zuni.
This land's sacred status has been broadly recognized,
including by the National Park Service, when it listed Oak Flat
on the National Register of Historic Places in 2016. In fact,
the area has been explicitly protected from mining interests
since 1955, when President Dwight D. Eisenhower withdrew it
from potential development.
In 2014, a rider in the National Defense Authorization Act
authorized a land exchange giving Oak Flat to a multi-national
mining conglomerate called Resolution Copper, which is owned by
Rio Tinto and BHP. The language in the NDAA requires that the
Forest Service produce an Environmental Impact Statement, or
EIS, to evaluate the effects of the mining plan before the
However, it also stipulated that the land is to be removed
from the Forest Service's jurisdiction and placed into the
hands of Resolution Copper within 60 days of the completion of
the EIS, regardless of the findings. This is absurd and
completely backwards. The NEPA process should have been
followed before any land exchange was agreed to, not after.
Instead, today, we will be examining a draft EIS that,
despite demonstrating some of the damage this mine will do to
our environment and sacred lands, will not be able to stop this
project from moving forward. The draft EIS describes Resolution
Copper's plan to extract 1.4 million tons of copper ore from
Oak Flat using a destructive mining technique known as ``panel
This technique will create a massive crater that will
directly and permanently damage the Oat Flat area. The crater
is projected to start to appear in Year 6 of active mining and
will ultimately be between 800 and 1,100 feet deep and roughly
1.8 miles across. If you want to try to picture that, this mine
will create a hole that is twice as deep as the Washington
Monument is tall and that will stretch the distance between the
U.S. Capitol and the Lincoln Memorial.
And in this crater of destruction will be the sacred site
of the Apache people. In this crater will be the ancient Emery
Oak Groves, which have been used by tribal members for
millennia. In this crater will be the ancestral burial grounds
of the Indigenous peoples of Southern Arizona. As there has
never been a complete survey of the area, it is difficult to
know exactly how many cultural resources may be destroyed or
swallowed by this crater. But it is not hard to know the hurt
and trauma this will inflict on the Native people who hold this
place sacred. In addition to the destruction of sacred sites,
this mine will have impacts that would last for centuries.
Unchecked groundwater pumping would deplete the area of
water resources, contributing to a water shortage crisis that
Arizona is already grappling with and depleting sacred springs
in that area. The operation will also produce 1.3 billion tons
of toxic tailings, which will be pumped through pipelines to a
yet-to-be-determined storage facility.
All in all, this mine is an environmental and human rights
disaster in the making, and the land exchange should not be
allowed to move forward.
Thank you again for being here and I look forward to
hearing your testimony.
[The prepared statement of Mr. Gallego follows:]
Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
Indigenous Peoples of the United States
I want to thank all our witnesses for being here today, especially
considering the difficulties the coronavirus outbreak has caused for
all of us.
Today, we will examine the detrimental effects that proposed mining
operations will have on tribal historical cultural and sacred sites
located in Southeastern Arizona.
A few weeks ago, we had a hearing on the destruction of sacred
sites that is occurring during the construction of the border wall on
the Southern border. Unfortunately, the destruction of those sacred
sites is not a unique case.
We are here again today to discuss the disregard for the rights of
Native Americans and the destruction of their sacred sites--this time
for the construction of a new dangerous and destructive copper mine
near the town of Superior, Arizona.
The legislative language that enabled this mining operation has a
history dating back to the 108th Congress in 2005--and tribal
opposition has been there since the very beginning. That's because the
land this mine would destroy includes the Chi'chil Bildagoteel Historic
District, known more broadly by its English translation, ``Oak Flat.''
Located in the Tonto National Forest, the historic Oak Flat area is
a sacred site to many tribal nations where they conduct religious and
cultural ceremonies and gather traditional medicines and food.
This land is sacred not only to the San Carlos Apache Tribe which
is represented here today, but to the Tonto Apache Tribe, the White
Mountain Apache Tribe, the Yavapai-Apache Nation, the Yavapai-Prescott
Indian Tribe, the Gila River Indian Community, the Salt River Pima-
Maricopa Indian Community, the Hopi Tribe, and the Pueblo of Zuni.
This land's sacred status has been broadly recognized, including by
the National Park Service when it listed Oak Flat on the National
Register of Historic Places in 2016.
In fact, the area had been explicitly protected from mining
interests since 1955 when President Dwight D. Eisenhower withdrew it
from potential development.
In 2014, a rider on the National Defense Authorization Act
authorized a land exchange giving Oak Flat to a multi-national mining
conglomerate called Resolution Copper, which is owned by Rio Tinto and
BHP. The language in the NDAA required that the Forest Service produce
an Environmental Impact Statement--or ``EIS''--to evaluate the effects
of the mining plan before the exchange occurred.
However, it also stipulated that the land is to be removed from the
Forest Service's jurisdiction and placed into the hands of Resolution
Copper within 60 days of the completion of the EIS, regardless of the
findings. This is absurd and completely backwards--the NEPA process
should have been followed before any land exchange was agreed to, not
Instead, today, we will be examining a Draft EIS that--despite
demonstrating some of the damage this mine will do to our environment
and sacred land--will not be able to stop this project from moving
forward. The Draft EIS describes Resolution Copper's plan to extract
1.4 billion tons of copper ore from Oak Flat using a destructive mining
technique known as ``panel caving.''
This technique will create a massive crater that will directly and
permanently damage the Oak Flat area. The crater is projected to start
to appear in year 6 of active mining and will ultimately be between 800
and 1,115 feet deep and roughly 1.8 miles across. Picture that. This
mine will create a hole that is twice as deep as the Washington
Monument is tall, that will stretch the distance between the U.S.
Capitol and the Lincoln Memorial.
And in this crater of destruction will be the sacred site and of
the Apache people. In this crater will be ancient Emory oak groves,
which have been used by tribal members for millennia. In this crater
will be ancestral burial grounds of the Indigenous Peoples of
Southeastern Arizona. As there has never been a complete survey of the
area, it is difficult to know exactly how many cultural resources may
be destroyed or swallowed up by this crater.
But it is not hard to know the hurt and trauma this will inflict on
the Native people who hold this place sacred. In addition to
destruction of sacred sites, this mine will have environmental impacts
that would last for centuries.
Unchecked groundwater pumping would deplete the area of water
resources, contributing to a water shortage crisis that Arizona is
already grappling with and depleting sacred springs in the area. The
operation will also produce 1.37 billion tons of toxic tailings, which
will be pumped through pipelines to a yet-to-be-determined storage
All in all, this mine is an environmental and human rights disaster
in the making, and the land exchange should not be allowed to move
Thank you again for being here, and I look forward to hearing your
Mr. Gallego. I would now like to recognize the Ranking
Member for any opening remarks. Our Ranking Member has decided
not to join us, so we will continue into witness testimonies.
I'd like to now transition to our first panel of witnesses.
Under Committee Rules, oral statements are limited to 5
minutes, but you may submit a longer statement for the record
if you choose. When you begin, the lights on the witness table
will turn green. After 4 minutes, the yellow light will come
on. Your time will have expired when the red light comes on,
and I will ask you to please wrap up your statement. I will
also allow the entire panel to testify before we question the
The Chair now recognizes Ms. Naelyn Pike, a member of the
San Carlos Apache Tribe and a youth organizer for Apache
STATEMENT OF NAELYN PIKE, YOUTH ORGANIZER, APACHE STRONGHOLD,
SAN CARLOS, ARIZONA
Ms. Pike. Thank you. My name is Naelyn Pike, and it is an
honor today to testify before the Subcommittee on behalf of the
Apache youth. Thank you, Chairman Gallego and Ranking Member
Cook for convening this important hearing. I am a member of the
San Carlos Apache Tribe and reside on the San Carlos Apache
Reservation in rural Southeast Arizona. I am Chiricahua Apache,
and my family has lived in what is now Southeastern Arizona
since time immemorial.
The United States Calvary had forced my people from the
land and onto the reservation in the late 1800s as prisoners of
war. While we had to leave our sacred places at gunpoint, these
areas still retain their spiritual, cultural, and historical
connection to the Apache people. I am here today to advocate
for my land, my religion, and my home on behalf of the next
generation and the generations yet to come. This is Chi'Chil
Bildagoteel, or Oak Flat.
At least eight Apache clans and two Western Apache bands
have documented history in what is today known as Oak Flat and
Apache Leap. Apache people are deeply connected to our
traditions and to the land that we have called home since first
put here by Usen, the Creator. My people have lived, prayed,
and died in Oak Flat and Tonto National Forest for centuries.
My great-grandmother lived along Oak Flat's ridge and the
river which runs down from the north. Today, Apache people come
to Oak Flat to participate in holy ground and sunrise dance
ceremonies, to pray, to gather medicine and ceremonial items,
and to seek and obtain personal peace and cleansing. I have
been brought to Oak Flat my entire life. My family would come
together for prayer, ceremony, to collect the acorns and
berries, and to live free as Apache people once were.
I still feel that strong spiritual connection to Mother
Earth, Nagosun, and to Usen at Oak Flat. It is who I am and
where I am free to be Apache. It is not just the wind that hits
my face or my feet hitting the ground, it is the spirits who
are talking through the wind to show that they are here with us
that resonates with us, and my feet waking up the earth,
telling the spirits that we are still here, and we are still
fighting, not ready to give up.
When I am at Oak Flat, I see what the Creator has blessed
us here with and that Usen has touched this place. Oak Flat is
one of the sacred areas where Apaches hold the coming-of-age
ceremony for girls to make their entrance into womanhood. My
sunrise dance ceremony was one of the most pivotal moments of
my life and forever changed who I am and how I see this world.
On the first day of my ceremony, I made the four Apache breads
for the medicine man and my godparents. My godmother helped me
dress into my traditional clothing and stayed with me for the
During the ceremony, I had danced alongside my godmother,
godfather, and partner by my side. I hit the ground hard with
my cane to the drumbeat that woke the mountains, the spirits,
and the Gaans, which are also known as angels, bringing them
back to life. Without them, the Apache people cannot conduct
I awoke the Gaans and danced beside them with tears running
down my face. On the third day, my partner and I danced
underneath the four sacred poles. This is when I became the
white-painted woman. My godfather and the Gaans painted me with
the Glesh. In our creation story, the white-painted woman came
out of the earth covered with the white ash from the Earth's
With my face completely covered, my godmother wiped my eyes
with her handkerchief. Once my eyes were opened, I looked upon
this world not just as a little girl, but now as an Apache
woman. It is our religious right to be able to practice our
ceremonies in our sacred places. If Resolution Copper proceeds
with the mine at Oak Flat, it will become a giant crater.
Without the land, who are we as Apache people? The land will
subside and the earth will die. How will we be able to practice
our ceremonies at Oak Flat when it is destroyed? How will we
harvest the acorns planted by Usen when the trees are gone? How
will we collect the sacred water from the springs when it is
The Gaan will no longer live at Oak Flat, and the
destruction will irreversibly destroy the sacred Chi'Chil
Bildagoteel. The food and the medicine can never be replaced,
nor can they ever be relocated. I am proud to be a member of
the Apache Stronghold and to be standing up and making my voice
heard on behalf of the Apache and other Indigenous youth.
Today, young people are standing up to protect our religion
and way of life that has been under attack for far too long.
Through massacre, forced removal from the land, and mandatory
boarding schools, the United States has tried to silence Native
voices and suppress our culture. I am here today to say that
the next generation will not be silenced. I will no longer be
In the DEIS, the Tonto National Forest discusses the Apache
way of life in the past tense as if it is an ancient history. I
hope Congress understands that the Apache way of life is not
just history, but it is also present and future. Today,
Congress has the opportunity to uphold the treaty and trust
responsibility to the Native people and to tell a foreign
mining company that our land is not for sale. My culture is not
for sale. My religion is not for sale. My people and my future
are not for sale. Congress has the opportunity to stand up for
religious rights, for Indigenous culture, and for the
environment in the face of certain massive destruction that
will be forever. The time to act is now, not only for my
generation but for the generations yet to come. Thank you.
[The prepared statement of Ms. Pike follows:]
Prepared Statement of Naelyn Pike, Youth Organizer, Apache Stronghold
My name is Naelyn Pike, and it is an honor to testify today before
the Subcommittee on behalf of Apache youth. I have traveled here to
testify from the San Carlos Apache Reservation (Reservation) in rural
Southeast Arizona. I am Chiricahua Apache, and my family has lived in
what is now Southeastern Arizona since time immemorial. In the late
1800s, the United States forcibly removed my people from the land and
drove the Apaches onto the Reservation, where they were made prisoners
of war. While we were forced to leave our sacred places at gunpoint,
these areas still retain their spiritual, cultural, and historical
connection to Apache people.
At least eight Apache Clans and two Western Apache Bands have
documented history in what is today known as Oak Flat and Apache Leap
area. Our people lived, prayed, and died in the Oak Flat and Tonto
National Forest area for centuries. Apache Leap was given its name
after Apache Warriors leaped to their death rather than be killed by
the United States Cavalry. These areas make us who we are today.
I am here today to advocate for my land, my culture, and my home,
on behalf of the next generation and the generations that will come
In 2014, Congress passed the 2015 National Defense Reauthorization
Act (NDAA), which included Section 3003, the Southeast Arizona Land
Exchange. The provision gave a 2,422-acre parcel of U.S. Forest Service
land to Resolution Copper, a foreign-owned mining conglomerate, in
exchange for privately owned land in Arizona that would be managed by
the U.S. Forest Service and the Bureau of Land Management. The land
Congress gave to Resolution Copper includes Chi'Chil Bildagoteel or Oak
Resolution Copper proposes to use block-cave mining to remove the
ore body underneath the land. The project will destroy the area and
leave a massive crater. Oak Flat will be destroyed. The natural springs
and life-giving water will be forever contaminated and depleted, and
massive infrastructure projects, including pipelines, will be built
under Apache Leap. I cannot overstate how destructive this will be to
our sacred land.
Native people have fought tirelessly since 2005 to try and stop the
land exchange from becoming law. Despite the widespread tribal,
environmental, and religious opposition, Congress included the land
exchange in the massive, must-pass NDAA legislation in 2014. While the
land exchange was signed into law, Apaches and our allies have not
stopped fighting to protect our land. The Save Oak Flat Act (H.R. 665
and S. 173) repeals Section 3003 and ensures that no destructive mining
will take place on our sacred land.
Chi'Chil Bildagoteel is my home, it is who I am, and it is where I
am free to be Apache. Apache people are deeply connected to our
traditions and to the land that we have called home since first put
here by Usen, the Creator. Apache people come to Oak Flat to
participate in Holy Ground and the Sunrise Dance ceremonies, to pray,
to gather medicines and ceremonial items, and to seek and obtain peace
and personal cleansing.
My great-grandmother and my ancestors lived along Oak flat's ridge
and the river, which runs down from the north. They fought to keep Oak
flat and Apache leap. This was home, the place where Usen put the Gaan
to bring blessings to the people.
I still feel a strong spiritual connection to mother earth and Usen
at Oak Flat. It is who I am and where I am free to be Apache. Oak Flat
is where Apache's can practice our culture, to connect with our
ancestors, and to live the spiritual connection to the land and
Creator. It is not just the wind hitting my face or my feet hitting the
ground, it is the spirits who are talking through the wind to show that
they are here with us, and my feet waking up the earth, telling the
spirits that we are still here, and we are still fighting, not ready to
give up. When I am at Oak Flat, I see what the Creator has blessed us
with and that Usen has touched this place. I feel it in my heart and
understand why my great-grandmother and her people fought for Oak flat
and Apache Leap. That is my holy place too. Usen has touched these
sacred places, and I am here to hold that.
Through my entire existence, I was consistently brought back to Oak
Flat. My family would come together for prayer and ceremony. When the
red berries and the acorn were in season, I was taken to Oak Flat to
gather our traditional foods. With the food we collected, we were able
to feed our families. Through this practice, I was able to learn my
role as an Apache girl and to live our culture. The acorn, berries, and
medicinal plants can never be replaced. Nor can they ever be relocated
to a different area. Usen has planted these plants and herbs there for
a reason. To me, Oak Flat is home, and it will always be home.
Oak Flat is one of the sacred areas where Apaches hold the coming
of age Sunrise Ceremony for girls to mark their entrance into
womanhood. The ceremony begins when a girl goes to the sacred land and
builds a wikkiup, which becomes their new home for the journey ahead.
On the first day of my ceremony, I made the four Apache breads for
the medicine man and my godparents. My godmother helped me dress in my
traditional clothing and stayed with me throughout the ceremony. On the
second day of the ceremony, I woke up when the sun started to rise. I
danced and prayed with my godmother, godfather, and my partner by my
side. I danced to the sun, the Creator. I hit the ground hard with my
cane in time with the drumbeat to wake up the sacred mountain, the
spirits, and the Gaans, also known as Angels, bringing them back to
life. Without the power of the Gaans, the Apache people cannot conduct
our ceremonies. I awoke the Gaans and danced beside them, tears
streaming down my face. On the third day, my partner and I danced
underneath the four sacred poles. This day is when I became the white-
painted woman. My godfather and the Gaans painted me with the Glesh. In
our creation story, the white-painted woman came out of the earth,
covered with white ash from the earth's surface. Being painted with the
Glesh represents the white-painted woman and her entrance into a new
life. The paint molds and glues the prayers and blessings from the
ceremony onto me. With my face completely covered, my godmother wiped
my eyes with a handkerchief. Once my eyes opened, I looked upon the
world not as a little girl, but as a changed woman. At the end of my
dance, my family and friends congratulated me. We all cried because I
was no longer a girl; I was now a woman. On the last day of my
ceremony, my grandmother undressed me and took me to the stream so I
could bathe. While she washed my hair, a small green hummingbird flew
right in front of us and hovered about before it flew toward the sky. I
knew this was a great blessing. I dressed in my everyday clothes, and
we went back to the camp.
I had become a woman and followed in the footsteps of Apache girls
that have come before me. My ceremony is just one part of an Apache way
of life. It is our religious right to be able to practice these
ceremonies in these sacred places. How can we practice our ceremonies
at Oak Flat when it is destroyed? How will the future Apache girls and
boys know what it is to be Apache, to know our home when it is gone?
impact on youth
I am proud to be a member of the Apache Stronghold and to be
standing up and making my voice heard on behalf of Apache and other
indigenous youth. Young people are standing up today to protect our
culture and a way of life that has been under attack for too long.
Through massacre, forced removal from the land, and sending children to
far-off boarding schools, the United States has tried to stifle Native
voices and suppress our culture. I am here today to say that the next
generation will not be silenced. Native youth understand that it is now
our responsibility to stand together proudly and ensure our culture is
protected for our children and our children's children.
If Resolution Copper is able to develop the mine at Oak Flat my
future children and grandchildren will never be able to see the beauty
and feel the power of Chi'chil Bildagoteel. They will never be able to
pick the acorn and berries to feed their families. They will never be
able to use the medicinal herbs to heal naturally. They will never hear
the echoes and see the silhouettes of the Gaans in the canyons. They
will never be able to feel the connection of Usen the way I feel it
today if Resolution Copper is allowed to destroy Oak Flat.
In the DEIS, Tonto National Forest discusses the Apache way of life
in the past tense as if it is ancient history. I hope Congress
understands that the Apache way of life is not just history, but the
present and future. We are living and breathing. The culture and
traditions are very much alive, and we pray every day that they will
The DEIS makes it clear that the mining project proposed by
Resolution Copper will destroy the Oak Flat area. The block cave mining
technique will obliterate the nature of the land, its ecology, and its
sacred powers forever.
Congress has an opportunity to pave a path between tribal nations
and the Federal Government to build a better life for our people and to
uphold its trust responsibility. This country was created for citizens
to believe in the American Dream. As prisoners of the United States,
indigenous people were left out of that dream. That dream continues to
pass over indigenous people to this day. We are still fighting to
practice our first amendment rights and our culture. The right to our
religion is being stripped away through Section 3003. It is in
Congress' power to make a difference. I urge the Committee and the
Congress as a whole to stand up for Native youth, to stand up for our
culture, and to do right by indigenous people.
Mr. Gallego. Thank you.
The Chair now recognizes the Hon. Wendsler Nosie, Sr., the
former Chairman of the San Carlos Apache Tribe and the founder
of Apache Stronghold.
STATEMENT OF THE HON. WENDSLER NOSIE, SR., FOUNDER, APACHE
STRONGHOLD, SAN CARLOS, ARIZONA
Mr. Nosie. Thank you. Thank you for the House Committee to
have this hearing. And I want to let you know that, within my
hand, I hold what we call Hoddentin, the yellow powder. I want
to give thanks to the people across this country who are in
prayer. I want to give thanks to all the men in this country
who are sweating at this time. And I want to give thanks to the
people that have congregated at Oak Flat since last night for
prayer about what is occurring here. So, I want to thank the
Creator for that and all the people in attendance and you all
I have come here for years and years and years saying the
same thing, preaching the same words about the neglect of NEPA
and how it has affected not only our people, our religion, but
our country and how it would set the example of devastation for
the rest to follow. When it comes to corporations, we are
talking about a religion. We are talking about angels, a saint.
We are talking about a sunrise ceremony that is no different
when we talk about Lady of Guadalupe, the Virgin Mary, similar
to that--of how life was given at that point. Young men come
into ceremonies, into young manhood. The oak trees will stand
800 years old at seeing life and still produce their first
acorn to provide meals for the people.
Medicine plants that are there for the people--like what we
are facing here today, what America doesn't know is that a lot
of these companies come to Native Americans to find medicine,
to find those things. Well, these places are being destroyed
and these holy places.
The water, the giver of life, we are talking about water
that is a part of the great ceremony that brings in the coming
of the world. And, today, we know that we have to live with
water. And that is going to be destroyed. And then the
mountains. I wish some of these people would come with me and
sit on the mountain tops and see how the wind comes from the
south, from the west, and how these mountains move the wind to
assure that certain places receive their abundance of water.
Leaders don't seem to know that.
And that is why we sit here today, because it is affecting
the world in a spiritual way--which brings us here, being that
a moral injustice has been done on the religious side of this
and that we are all a part of this now. My religion is your
religion. Your children are my children. So, when it came down
to the Tribe entering this argument, the tribal government
relied on the United States with NEPA.
And if you look at the record, you see how many times they
made an attempt to get an exemption from Congress and were
denied. It wasn't until a late-night rider was slipped in for
this, for us to sit here, for my granddaughter to sit here to
speak and everyone to be in prayer today because of that,
because of this NEPA law that could have provided all the
information from the religious perspective and from the
corporate perspective because those things are really
We need to understand what brings us here. What brings us
here in this argument is power and greed. And we say about the
deception how things were created and how people are not told
the truth. And in Arizona today and these public hearings, 98.9
percent of the people disagree. The reason why they disagree
now and not then was because no plan of operation was given to
anybody, just jobs and money, jobs and money, taxes.
So, people fell for that. But they didn't realize all the
impact of devastation that it is going to bring, which you will
hear on the next panel. But the important part is that there
are places in America that you cannot destroy. Now, here, we
are talking about a time of a people that had a way of life and
that were put as prisoners of war. And now we are dealing with
the after-effects that we were vacated out of these homelands
that were our holy places.
What fears me the most is my grandkids, to bear their
children--because as people in this country can go back to
Europe and appreciate what's in the Bible about what's holy in
these holy places and visit Mount Sinai, which is no different
from here. These places are holy, as equal, to those places
because even at that time, Usen, who is known throughout the
world by many names, but who is God, had blessed this place no
different than any other place.
So, if we are going to call this place home, then we need
to begin to treat these places like home. What's going to be
destroyed is our people. And what our people before me have
said was that the last battle of our existence would be our
religion, that the religion will be taken from our people, and
we must stand all together to assure that we do not destroy the
precious gift that God placed on this world. So, again, I want
to thank you for the opportunity for being here, and I look
forward to any questions. Thank you.
[The prepared statement of Mr. Nosie, Sr., follows:]
Prepared Statement of Wendsler Nosie, Sr., Founder, Apache Stronghold;
and Former Chairman of the San Carlos Apache Tribe
Good afternoon, Chairman Gallego, Ranking Member Cook and
distinguished members of the Subcommittee. It is an honor to have the
opportunity to testify before you today on behalf of the Apache
Stronghold and as a Member of the San Carlos Apache Tribe.
My name is Wendsler Nosie, Sr., and I am here today to speak about
the irreversible destruction that the Resolution Copper Mine would have
on the Oak Flat area--an area sacred to many tribes in the region
including my own, the San Carlos Apache Tribe--and an area of natural
beauty and wonder to the region in general. I am also proud to be
sharing a panel with my granddaughter sitting next to me, Ms. Naelyn
Pike. We have come a long way together through this struggle to protect
our ancestral homelands, and I am thankful for her never-ending support
and courage, especially during the most difficult times. Her powerful
voice and determination to help protect the things we hold dear are a
constant reminder that we must do so for future generations as Apache
For over a decade our Tribe fought to stop the Southeast Arizona
Land Exchange (``Land Exchange''), a proposal to transfer approximately
2,422 acres of our ancestral homelands in the Tonto National Forest
(``TNF'') to foreign mining conglomerates, Rio Tinto and BHP Billiton,
to dig a questionable and vast copper mine beneath lands we hold as
sacred. Thanks to the vocal opposition of more than 300 Native Nations
and tribal organizations the House of Representatives pulled the Land
Exchange from floor consideration twice during the 113th Congress due
to lack of support. Despite this nationwide opposition, the Land
Exchange was buried on page 1,103 of a 1,700-page National Defense
Authorization bill that was unveiled just minutes prior to midnight the
evening before votes. This despicable action is the antithesis of
democracy and has threatened to forever destroy our way of worship and
life. If the Land Exchange is permitted to move forward through
finalization of a flawed Draft Environmental Impact Statement
(``DEIS'') process, the mining corporation and TNF, both acknowledge
that the mine will cause a vast subsidence in the earth, destroying our
Sacred Oak Flat, our religion, and with it, our traditional way of
life. The mine will also permanently damage the region's already
severely depleted water supply and the wake of this destruction will
cause a multi-billion dollar superfund site that will haunt generations
yet to come. Meanwhile, the mercenaries and perpetrators of this
irreversible damage, who have no direct or ancestral ties to the area,
will simply up and leave after they have extracted the minerals of
value they seek to profit from while leaving us to deal with their
We said for years, Resolution Copper's mining operations will have
devastating impacts on our history, our culture, our religious
practices, and the natural resources and environment of this area,
especially the region's water supply. For years, proponents of
Resolution Copper ignored these harsh realities and insisted that the
benefits of jobs, which were greatly exaggerated and fluctuated
frequently, were worth the toll to the environment and life of the
surrounding communities. Yet the DEIS confirmed in large part the
permanent damage and losses we already knew would occur to the broader
physical environment, and our places of religious worship and cultural
reverence should the project be allowed to proceed. The Tribal Values
and Concerns (DEIS, 3.14) section is incomplete and demonstrates a
failure of the U.S. Forest Service to conduct adequate consultation
with affected tribes. The proposed mine would directly, adversely, and
permanently affect numerous cultural artifacts, sacred seeps and
springs, traditional ceremonial areas, resource gathering localities,
burial locations, and other places of high spiritual value to tribal
members. We find the lack of reference in the DEIS to the archeological
and cultural records held by the San Carlos Apache Tribe and other
Indigenous peoples with ties to the area is inadequate and incomplete.
The analysis of the Tribal Values and Concerns focuses the impacts
of the proposed Land Exchange and Resolution Copper Mine on the past
without recognizing the current presence of religious and cultural
practices that have endured at Oak Flat for centuries. This erasure of
Native Americans in contemporary terms perpetuates the genocidal
history of America. What was once gunpowder and disease is now replaced
with bureaucratic negligence and a mythologized past that treats we as
Native people as something invisible or gone. We are not. We are still
a vibrant and vital part of our Nation's fabric despite repeated
attempts to relegate our cultures as artifacts in museums or blurbs in
history books. However, the permanent damage that will be caused by the
Resolution Copper Mine is something that will contribute to this
genocidal narrative continuing now and well into the future. It is
disappointing that the cumulative effects analyzed in the Oak Flat DEIS
do not look at the present or future of impacted Native peoples.
Chi'Chil Bildagoteel (also known as Oak Flat) is a Holy and Sacred
site for our Apache people and many other Native Americans. It is a
place where we pray, collect water and medicinal plants for ceremonies,
gather acorns and other foods, and honor those that are buried here. It
is important to understand that we have never lost our relationship to
Chi'Chil Bildagoteel. Despite the violent history of the U.S.
Government's exile, forced march and imprisonment of Native people on
reservations, and the efforts by the U.S. Government to discourage,
impede, or fully disallow us from coming to this holy area, we have our
own legacy of persistence and never letting go of this place. Chi'Chil
Bildagoteel's religious value to our prayers, our ceremonies, and in
our family histories cannot be overstated. Native religion was the
first religion practiced in this area. And for over 5 years now, we
have established an encampment to protect the Holy Ground at Chi'Chil
Bildagoteel with its four crosses, which represent the entire
surrounding Holy and Sacred area, including its water, animals, oak
trees, and other plants central to our tribal identity. It is important
to note that Chi'Chil Bildagoteel is listed on the National Park
Service's National Register of Historical Places (``NRHP'') as a
Historic District and Traditional Cultural Property (``TCP''). Emory
oak groves at Oak Flat used by tribal members for acorn collecting are
among the many living resources that will be lost along with more than
a dozen other traditional plant medicine and food sources. Other
unspecified mineral and plant collecting locations and culturally
important landscapes will also be affected. Development of the
Resolution Copper Mine would directly and permanently damage Chi'Chil
Bildagoteel, the designated TCP that is vital to us, which is why we
strongly oppose this operation.
The impacts that will occur to Oak Flat will undeniably prohibit
the Apache people from practicing our ceremonies at our Holy site.
Construction of the mine would temporarily cut off access and once the
mine has been completed, the ongoing safety concerns of subsidence will
create a permanent barrier preventing Apache ceremonies from taking
place. Our connections to the Oak Flat area are central to who we are
as Apache people. Numerous people speak of buried family members. Most
of them include childhood memories. Everyone speaks to the deep
spiritual and religious connection that Apaches have to the land,
water, plants and animals that would be permanently destroyed by this
proposed action. The destruction to our lands and our sacred sites has
occurred consistently over the past century in direct violation of
treaty promises and the trust obligation owed to Indian tribes. Tribes
ceded or had taken hundreds of millions of acres of our homelands to
help build this Nation. In return, the United States incurred
obligations to protect our lands from harm, and to respect our religion
and way of life. Despite these obligations, the U.S. Government has
consistently failed to uphold these promises or too often fails to act
to protect our rights associated with such places like Chi'Chil
Please keep in mind that the Land Exchange was achieved through a
backroom agreement, literally at midnight the evening before attaching
it to the FY 15 National Defense bill. We would not be in this position
today had the Land Exchange gone through regular order and been subject
to meaningful debate.
In closing, we stand with the tribes, environmental protection
groups, religious freedom advocates, congressional leaders, and many
other allies in asking Congress to ensure that the Tonto National
Forest does not to move forward with the flawed DEIS, which would
transfer Federal land to private hands for foreign mining interests. We
also encourage support of H.R. 665 and S. 173, the Save Oak Flat Act,
which would repeal Section 3003 from the 2015 National Defense
Reauthorization Act and protect Oak Flat and areas in the Tonto
National Forest from being irreversibly scarred and destroyed. Last, we
are approaching a time in the calendar when many Christians are
preparing for Easter celebrations. Families will gather at churches to
celebrate their religious beliefs, give thanks, and pray for those in
need. I want to remind you that when our families gather at Oak Flat to
celebrate our religious beliefs, we are no different than our Christian
brothers and sisters who will gather at their respective churches this
coming Easter Sunday. The only difference is our permanent place of
prayer and worship is under attack and could be destroyed if the DEIS
is approved and the Land Exchange occurs. We ask you to carefully
consider and keep this in mind as this process continues.
Mr. Gallego. Thank you, Mr. Nosie.
The Chair now recognizes Mr. Kevin Allis, the Chief
Executive Officer for the National Congress of American
STATEMENT OF KEVIN ALLIS, CHIEF EXECUTIVE OFFICER, NATIONAL
CONGRESS OF AMERICAN INDIANS, WASHINGTON, DC
Mr. Allis. Good morning, Mr. Chairman, Ranking Member Cook,
and members of the Subcommittee. On behalf of the National
Congress of American Indians, I would like to thank you for
holding this very important oversight hearing. My name is Kevin
Allis. I am an enrolled citizen in the Forest County Potawatomi
Community in Wisconsin and current Chief Executive Officer of
the National Congress of American Indians (NCAI).
Founded in 1944, NCAI is the oldest, largest, and most
representative organization in the country serving the broad
interests of tribal nations and communities. Core to NCAI's
mission is its commitment to securing tribal traditional
cultures--ways of life--for our descendants.
The United States has a legal and moral obligation to
protect sacred sites and cultural resources. But despite this
obligation, a late rider in the Fiscal Year 2015 National
Defense Authorization Act authorized a land exchange that would
transfer public land in the Oak Flat area of Tonto National
Forest to Resolution Copper, which is a foreign subsidiary
company privately owned by a couple of mining corporations.
Today, my testimony will address Congress' fiduciary
obligation to protect tribal resources and emphasize tribal
opposition to the transfer of the Oak Flat area.
Tribal nations have a unique legal and political
relationship with the Federal Government. As defined in the
U.S. Constitution, treaties, statutes, court decisions, and
executive orders. Through its acquisition of tribal lands and
resources, the United States formed a fiduciary relationship
with tribal nations whereby it recognized a trust relationship
to safeguard tribal rights, lands, and resources.
This responsibility includes the important protection of
tribal historical and cultural resources as provided in
numerous statutes, executive orders, and departmental policies.
Congress, in the National Historic Preservation Act, stated
that it is the policy of the Federal Government, in cooperation
with other nations and in partnership with Indian tribes, to
provide leadership in the preservation of prehistoric and
historic resources of the United States.
As mentioned by the Chairman, since 1955, the Federal
Government has restricted mining within Oak Flat. And in 2016,
Oak Flat was placed on the National Register of Historic Places
as a traditional cultural property, which is a designation
under the National Historic Preservation Act that provides the
site with a very heightened Federal protection. This
designation didn't come overnight. It was the product of
lengthy historical and archaeological analysis and demonstrates
the Federal Government's recognition of this landscape's
national, historical, and cultural significance.
The Federal Government must do whatever it needs to do to
protect and preserve it. Transferring this land to Resolution
Copper would set a dangerous precedent and contravene the very
purpose of the National Historic Preservation Act, which
establishes that certain historic properties are so significant
to our national heritage that their preservation is in the
This proposed transfer will result in, as we heard,
unparalleled destruction of the cultural and environmental
resources of the Oak Flat area because the proposed mining
activity involves drilling 7,000 feet below the surface of the
earth, removing, as we heard, 1.4 billion tons of ore.
The removal of the ore will ultimately cause a subsidence
that will be approximately 1.8 miles wide and up to a thousand
feet deep. The figures are astounding, and these come directly
from the draft Environmental Impact Statement which
acknowledges the cultural resources within Oak Flat will be
adversely affected by leaving Federal management, which will
result in an unacceptable and a substantial threat to the
perpetuation of cultural traditions of the Apache and Yavapai
As a result of these threats to tribal sacred places, there
is broad opposition across Indian Country to the land transfer,
which will be unprecedented in its destruction of religious,
cultural, archaeological, historical, and natural resources. In
fact, NCAI's membership has recognized this and passed several
resolutions through the past decades opposing desecration of
sacred sites and specifically this land transfer--most recently
during our annual convention in Albuquerque in October.
Accordingly, I call on Congress. The National Congress of
American Indians calls on Congress. The Indian Country calls on
Congress to uphold its trust responsibility to tribal nations
by immediately repealing Section 3003 of the Fiscal Year 2015
NDAA to prevent this destruction of tribal sacred places and
In conclusion, I thank you for holding this hearing to
address this extraordinary threat to tribal culture and
historic resources posed by the transfer of the Oak Flat area,
and I would be happy to answer any questions.
[The prepared statement of Mr. Allis follows:]
Prepared Statement of Kevin J. Allis, Chief Executive Officer, National
Congress of American Indians
On behalf of the National Congress of American Indians (NCAI),
thank you for holding this hearing on ``The Irreparable Environmental
and Cultural Impacts of the Proposed Resolution Copper Mining
Operation.'' My name is Kevin Allis, and I am a citizen of the Forest
County Potawatomi Community and the Chief Executive Officer of the
National Congress of American Indians (NCAI). I look forward to working
with members of this Subcommittee and other Members of Congress to
address the grave impacts the proposed Resolution Copper mine will have
on tribal sacred places and cultural resources.
Founded in 1944, NCAI is the oldest, largest, and most
representative national organization serving the broad interests of
tribal nations and communities. Tribal leaders created NCAI in response
to termination and assimilation policies that threatened the existence
of American Indian and Alaska Native tribal nations. Since then, NCAI
has fought tirelessly to preserve the treaty and sovereign rights of
tribal nations, advance the government-to-government relationship, and
remove historic structural impediments to tribal self-determination.
Core to NCAI's mission is a tireless commitment to securing tribal
traditional cultures and ways of life for our descendants.
Federal, state, and private lands are carved from the ancestral
territories of tribal nations. In spite of this significant land loss,
tribal nations maintain deep and ongoing religious, social, and
cultural connections to their sacred places within their ancestral
territories. This is, in part, because tribal nations and their
citizens are place-based peoples. Sacred and cultural landscapes are
places for tribal nations and their citizens to pray, hold ceremonies,
and gather traditional and medicinal plants. They also are places where
tribal cultures, religions, and ways of life are preserved, protected,
and passed on to the next generation through oral tradition and
traditional acts of cultural and religious observance.
The U.S. government has a legal and moral obligation to provide
tribal peoples access to these ancestral lands and to protect these
traditional cultural territories in a manner that respects and
preserves their tribal cultural, historical, spiritual and religious
importance. Despite this obligation, Congress, in a late rider to the
National Defense Authorization Act of 2015 (2015 NDAA), authorized a
land exchange which transferred all right, title, and interest of the
United States in approximately 2,242 acres of public lands in the Tonto
National Forest to Resolution Copper, which is a subsidiary of private,
foreign-owned mining corporations. The purpose of this transfer of
land, within an area commonly known as Oak Flat, is to construct and
operate a block-cave copper mine. Pursuant to Section 3003 of the 2015
NDAA, a review of cultural and archaeological resources impacted by the
proposed mine is required and the land transfer will commence upon the
completion of a final environmental impact statement.\1\
\1\ P.L. 113-291 Sec. 30003.
This testimony addresses Congress' fiduciary obligation to protect
tribal resources; details the documented historical and cultural
resources within the Oak Flat Area; and highlights Indian Country's
united opposition to this land transfer, which will irrevocably destroy
the resources within this sacred area.
congress has a trust responsibility to protect tribal historical and
Tribal nations are members of the original family of American
governments and have a unique legal and political relationship with the
United States as defined by the U.S. Constitution, treaties, statutes,
court decisions, and executive orders. Supreme Court case law has long
recognized that tribal nations are distinct political entities that
pre-date the existence of the United States and that have retained
inherent sovereign authority over their lands and people since time
immemorial. Through its acquisition of tribal lands and resources, the
United States formed a fiduciary relationship with tribal nations
whereby it has recognized a trust relationship to safeguard tribal
rights, lands, and resources.\2\ In fulfillment of this trust
relationship, the United States ``charged itself with moral obligations
of the highest responsibility and trust'' toward tribal nations.\3\
\2\ See Johnson v. M'Intosh, 21 U.S. 543 (1823); Cherokee Nation v.
Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832)
(collectively called the ``Marshall Trilogy'').
\3\ Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
Congress has expressly recognized its fiduciary responsibilities as
reflected by the fact that ``[n]early every piece of modern legislation
dealing with Indian tribes contains a statement reaffirming the trust
relationship between tribes and the federal government.'' \4\ An
essential component of this fiduciary responsibility is the
preservation of sacred places, objects, and cultural landscapes, as
provided for in numerous statutes, executive orders, departmental
policies, and inter-departmental memoranda.\5\
\4\ Cohen's Handbook of Federal Indian Law Sec. 5.04[a] (Nell
Jessup Newton ed., 2012).
\5\ See e.g., National Historic Preservation Act, 16 U.S.C. 470 et
seq.; Native American Graves Protection and Repatriation Act, 25 U.S.C.
3001 et. seq.; Executive Order No. 13,007, ``Indian Sacred Sites,''
(1996); Memorandum of Understanding Among: U.S. Department of Defense,
U.S. Department of the Interior, U.S. Department of Agriculture,
Department of Energy, Advisory Council on Historic Preservation on
Interagency Coordination and Collaboration for the Protection of Indian
Congress, in the National Historic Preservation Act, specifically
stated that it is the policy of the federal government, ``in
cooperation with other nations and in partnership with . . . Indian
tribes . . . [to] provide leadership in the preservation of the
prehistoric and historic resources of the United States.'' \6\
Additionally, Executive Order 13007 directs that ``in managing federal
lands, each executive branch agency with statutory or administrative
responsibility . . . shall, [to] the extent practicable . . . avoid
adversely affecting the physical integrity of such sacred sites.'' \7\
Lastly, the American Indian Religious Freedom Act states, ``it shall be
the policy of the United States to protect and preserve for American
Indians their inherent right of freedom to believe, express, and
exercise . . . traditional religions . . . and the freedom to worship
through ceremonials and traditional rites.'' \8\
\6\ 16 U.S.C. Sec. 470-1(2).
\7\ Executive Order No. 13,007, ``Indian Sacred Sites,'' (1996).
\8\ 46 U.S.C. Sec. 1996(1).
The proposed land transfer of the Oak Flat Area in the Tonto
National Forest to Resolution Copper contravenes the Federal trust
responsibility and Congress' long-standing support for the protection
and preservation of tribal environmental, historical, and cultural
the federal government has recognized the historical and cultural
uniqueness of the oak flat area
In 1955, President Dwight D. Eisenhower recognized the importance
of the Oak Flat Area when he signed Public Land Order 1229. This order
withdrew the Oak Flat Picnic and Camp Ground from future mining
activities. In 1971, the Nixon administration's Department of the
Interior again acknowledged the importance of the area when it retained
this mining ban.\9\ Most recently, in 2016, the Oak Flat area was
placed on the National Register of Historic Places (National Register)
as a Traditional Cultural Property (TCP).
\9\ Lydia Millet, ``Selling off Apache Holy Land,'' https://
(last visited, March 19, 2020).
A TCP is a type of property that is eligible for inclusion on the
National Register based on its associations with cultural practices,
traditions, beliefs, lifeways, arts, crafts, or social
institutions.\10\ Properties may be nominated to the National Register
by a State Historic Preservation Officer,\11\ Tribal Historic
Preservation Officer,\12\ or Federal agencies.\13\ Importantly, TCPs
may also be identified as part of an agency's responsibilities to
prepare a draft environmental impact statement,\14\ determining
categorical exclusions,\15\ or preparing an environmental assessment
\16\ under the National Environmental Policy Act.
\10\ ``National Register of Historic Places--Traditional Cultural
Properties (TCPs): A Quick Guide for Preserving Native American
Cultural Resources,'' U.S. Department of the Interior, National Park
Service, American Indian Liaison Office.'' https://www.nps.gov/history/
TRIBES/Documents/TCP.pdf (last visited, Mar. 10, 2020).
\11\ 36 C.F.R. Sec. 60.6.
\13\ 36 C.F.R. Sec. 60.9.
\14\ 40 C.F.R. Sec. 1502.25.
\15\ 36 C.F.R. Sec. 800(b).
\16\ 36 C.F.R. Sec. 800.8(c).
Once identified and determined to be eligible for listing on the
National Register, a TCP is a ``historic property'' within the meaning
of the NHPA.\17\ As a National Register-eligible property, agencies
carrying out undertakings that may affect the property are required to
engage in what is commonly known as a Section 106 review.\18\ As part
of the Section 106 process, Federal agencies are required to consult
with Tribal Historic Preservation Officers and American Indian and
Alaska Native tribal nations.\19\ Specifically, the Act requires the
agency to consult with tribal nations that attach religious and
cultural significance to historic properties that may be affected by an
undertaking,\20\ assess adverse effects,\21\ and continue tribal
consultation to resolve any adverse effects.\22\ If no resolution is
reached, the Advisory Council on Historic Preservation provides
comments to the head of the agency that must be taken into account as
part of the final agency decision.\23\
\17\ 36 C.F.R. Sec. 800.16(l)(1) (Historic Properties are any
prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register of
\18\ 36 C.F.R. Sec. 800.1(a).
\19\ 36 C.F.R. Sec. 800.2(a)(4).
\20\ 36 C.F.R. Sec. 800.2(c)(2)(ii).
\21\ 36 C.F.R. Sec. 800.5.
\22\ 36 C.F.R. Sec. 800.6.
\23\ 36 C.F.R. Sec. 800.7.
The placement of the Oak Flat Area on the National Register is the
product of lengthy historical and archaeological analysis. It
demonstrates the Federal Government's explicit recognition of this
landscape's national historical and cultural significance and its
obligation to preserve it. The proposed land transfer to Resolution
Copper of a National Register property would set a dangerous precedent
and violate the very purpose of the NHPA, which establishes that
certain historic properties are so significant to our national heritage
that ``the preservation of this irreplaceable heritage is in the public
interest so that its vital legacy of cultural, educational, aesthetic,
inspirational, economic, and energy benefits will be maintained and
enriched for future generations of Americans.'' \24\
\24\ 16 U.S.C. Sec. 470.
there is broad indian country opposition to the destruction of the oak
Despite a 65-year history of federal acknowledgement of the
historical and cultural significance of the Oak Flat Area, Section 3003
of the 2015 NDAA provides that no later than 60 days following the
publication of a Final Environmental Impact Statement, the Secretary of
the United States Department of Agriculture must convey the Oak Flat
Area to Resolution Copper.\25\
\25\ P.L. 113-291 Sec. 30003(c)(10).
This transfer will result in an unparalleled destruction of the
cultural and environmental resources of the Oak Flat Area. The project
proposes to remove copper ore through a technique called block-cave
mining. This is a type of mining that digs deep below the earth's
surface to extract ore as the earth above collapses from the void
created. If permitted, Resolution Copper would create one of the
largest and deepest copper mines in the United States.\26\ Resolution
Copper proposes to extend mine workings approximately 7,000 feet below
the surface of the earth \27\ and remove approximately 1.4 billion tons
of ore to produce 40 billion pounds of copper.\28\ The result of
removing ore from below ground would cause a subsidence of roughly
6,951 acres, or 11 square miles approximately 1.8 miles wide and 800-
1,115 feet deep.\29\
\26\ See Draft Environmental Impact Statement: Resolution Copper
Project and Land Exchange, at p. 3.
\28\ Id. Executive Summary, at ES-3; see also Draft Environmental
Impact Statement: Resolution Copper Project and Land Exchange, at p. 6.
\29\ Id., at p. 26.
In addition to the existing listing on the National Register, this
area is home to many traditional cultural properties eligible for
inclusion in the National Register that are culturally important to
tribal nations in the area.\30\ Regarding the effects of the proposed
project on tribal cultural resources, the Draft Environmental Impact
\30\ See Draft Environmental Impact Statement: Resolution Copper
Project and Land Exchange, at p. 628 (``Within the direct impacts
analysis area, 721 archaeological sites have been recorded . . . Of the
721 sites, 523 are recommended or determined eligible for the NRHP
[National Register of Historic Places] . . ..'').
All of these resources would be adversely affected by leaving
Federal management. In particular, the loss of the ceremonial
area and acorn-collecting area in Oak Flat would be a
substantial threat to the perpetuation of cultural traditions
of the Apache and Yavapai tribes, because healthy groves are
few and access is usually restricted unless the grove is on
\31\ See Draft Environmental Impact Statement: Resolution Copper
Project and Land Exchange, at p. 665.
The environmental degradation and destruction of this life-
sustaining landscape is unacceptable. Since 2001, NCAI has passed over
60 resolutions that speak to the broad concerns of tribal nations and
their citizens regarding cultural and historic resources. Specifically,
NCAI has passed several resolutions directly opposing the proposed land
transfer in Section 3003 of the 2015 NDAA,\32\ and recently passed
Resolution #ABQ-19-062, titled ``Support for the Protection of Oak Flat
and Other Native American Sacred Spaces from Harm.''
\32\ NCAI Resolution #REN-13-019: ``In opposition to the Conveyance
of Federal Lands to Foreign Mining Interests with Sacred and Cultural
Significance to Tribes, Including H.R. 687 and S. 339''; NCAI
Resolution #MSP-15-001: ``Support for Repeal of Section 3003 of the FY
15 National Defense Authorization Act, the Southeast Arizona Land
This resolution expresses NCAI's support for repeal of Section 3003
of the 2015 NDAA due to its circumvention of Federal laws that protect
sacred places from destruction and harm. In addition to NCAI's national
advocacy, there is broad opposition across Indian Country to the land
transfer, which will be unprecedented in its destruction of religious,
cultural, archeological, historical, and natural resources.
Indian Country has urged Congress to affirm its trust
responsibility by repealing Section 3003 of the 2015 NDAA. Prior to the
late addition of Section 3003 in the 2015 NDAA, Congress had
consistently rejected legislation that would have transferred the Oak
Flat Area for copper mining. Given the clear cultural and environmental
destruction that this land transfer will cause, NCAI calls on Congress
to fulfill its fiduciary duty and prevent Resolution Copper from
acquiring the Oak Flat Area.
On behalf of NCAI, I again thank you for holding this oversight
hearing to address the extraordinary threat to tribal cultural and
historic resources posed by the transfer of the Oak Flat Area to
Mr. Gallego. Thank you, Mr. Allis.
I thank the first panel of witnesses for their testimonies,
reminding the Members that Committee Rule 3(d) imposes a 5-
minute limit on questions. The Chairman will now recognize
Members for any questions they may wish to ask the witnesses. I
will start by recognizing myself for 5 minutes.
Ms. Pike, thank you for being here. Your testimony states
that Congress has the opportunity to uphold the Federal trust
responsibility by protecting Oak Flat. Can you expand on why
the Oak Flat Land Exchange is at odds with our trust
responsibility to Native people, specifically the Apache?
Ms. Pike. I think that Tonto National Forest's lack of
trust responsibility was the lack of not consulting with the
San Carlos Apache Tribe in regard to the land transfer. As you
can already see with Oak Flat, Chi'Chil Bildagoteel, this is
already a lack of responsibility of protecting our religion,
protecting our natural resources, and protecting the San Carlos
Apache Tribe and the future and welfare of who we are.
This consultation has never happened between the Tribe and
Resolution Copper and Tonto National Forest. In the DEIS, the
San Carlos Apache Tribe is only mentioned three times. That
right there shows a lack of how important we are and not only
looking at us as a present and future people but looking at us
as a past history.
Mr. Gallego. Thank you, Ms. Pike.
Mr. Nosie, in your testimony, you describe the permanent
damage that Resolution Copper's proposed mine would have on the
Oak Flat area, which includes destruction of land, water,
plants, and animals--all living things to which Apache people
hold a deep spiritual and symbiotic connection with. Can you
please tell us how future generations would be impacted if this
sacred site were to be permanently destroyed.
Mr. Nosie. The example I can give you is--what people
practice with their Holy Bible. We talk about the sacred sites
on the other side of the world where gifts were given. Well, it
is identical here. There is no difference. If you have the
sacred mountain collapsing, subsiding into just a big hole,
then what does it do for the rest of our kids that are yet to
be born? It takes away from the language, the ceremony, the
religious ways that we see the way God had placed his hand on
the world here. So, how do you describe, and how do you say
So, what we see is a forever desecration to never, ever
return, and it will harm our children forever. And it will
totally impact the surrounding area because not only Native
people but people who have come to this holy place and have
felt that itself. You can hear that from many non-Indians of
America as well because when you know who God is, then you feel
the presence of where it is at.
Mr. Gallego. Thank you, Mr. Nosie.
Mr. Allis, as you pointed out in your testimony, Oak Flat
is listed on the National Register for Historic Properties. Can
you elaborate on why the National Historic Preservation Act is
so important to tribal nations?
Mr. Allis. Yes. Thank you, Chairman. Great question. It
recognizes the importance of it protecting and preserving
cultural heritage in tribal nations. Not only is it listed on
the National Historic Preservation Act list, but it is a TCP.
And what that means is that it is a very unique property. It is
a unique location that recognizes the roots to a community's
history. That is important for maintaining that community's
history and their cultural and religious identity.
And it means it is alive. That the practices and beliefs
that are attached to that location are still going on today.
They are alive and well and why this really needs to be
protected. These aren't things that once happened there, these
are things that have happened there forever and continue to
happen today and why that is really important to preserving
this particular location.
Mr. Gallego. Considering that it is a TCP, traditional
cultural property, and the Federal Government has specifically
recognized it as such, isn't the obligation of the Federal
Government, then, to protect it, in your opinion, or is there
an obligation for them to do that?
Mr. Allis. Absolutely. In the trust and fiduciary
responsibility that the United States has to Indian Country and
protecting, as I mentioned in my testimony, lands, rights,
cultures, and traditions, this is at the heart of that. And if
we are not paying attention to this and if the United States
isn't respecting this and recognizing the significance of what
this Act would do and how it would harm and the precedents that
it would set in how these sacred sites and how Indian Country
looks at these, if we are not paying attention to that, that is
significant long-term damage that cannot be repaired. As we
heard in the testimony, once this has gone, it is gone. It is
not coming back. These sites aren't movable or transferable.
They are where they are for a reason.
Mr. Gallego. Thank you, Mr. Allis.
Now I yield to Representative Haaland.
Ms. Haaland. Thank you, Chairman.
Mr. Allis, my first question is for you. Will you elaborate
on your testimony that highlights the harmful precedent that
this land exchange will set for the National Historic
Preservation Act and how the terms of this land transfer will
impact future tribal nations?
Mr. Allis. What it does is, in the 11th hour, in the middle
of the night, in a provision that is tucked into an NDAA bill,
it contravenes the entire purpose that Congress built into the
National Historic Preservation Act. It does an end-around, if
you will. The responsibilities that Federal agencies have in
interacting, engaging, and consulting with tribes on the
importance of these sites and discuss ways to either avoid,
mitigate, or completely move away from the action that is taken
that could damage and impact the site.
So, like I mentioned previously with the Chairman's
questions, if we are not completely following what was intended
and mandated in the National Historic Preservation Act and
allow it to be waived or removed through another legislative
act, there is serious long-term damage to Indian Country.
Ms. Haaland. Thank you, Mr. Allis.
My next question is for Mr. Nosie. In November, you
informed the Forest Service that you are taking a religious
position and assume residence at the Oak Flat Campground in the
Tonto National Forest. Will you tell us why you chose to return
to your ancestral homeland and why this is important to the San
Carlos Apache Tribe and also the issue that you are fighting
Mr. Nosie. The reason--returning back to the Oak Flat was
growing up and sitting on a reservation with my uncles and
grandfather and them talking about the promises that the United
States made with the Apache people and that one day we will be
able to return back, and then telling our people that these
places are held in trust and protection that once we become
civilized, we will be able to come back to these places.
So, it came to a point where they were hurt. They were
crying. There were men that were crying, no longer to be able
to go back to what they knew. And I grew up in that era with my
mother being a prisoner of war, being born on the reservation.
So, growing up and becoming a tribal leader and knowing my
responsibility as a tribal leader, that my responsibility is to
protect the people and protect the environment and do the best
for what could be good for all.
And I have that same trust responsibility with the United
States, that these are leaders to oversee not just us but the
people of the country. So, when all of this was happening and
coming to the draft EIS to show the complete ignorance yet to
leave us or put us only in three spots and not speak of
anything, then I came here to the agency and delivered my
letter that I am returning back to Oak Flat because of their
negligence, that I am no longer going to wait for these
promises to happen. I am no longer going to wait.
So, I returned back and set up residence and began to take
care of the place the way it should be taken care of. And that
is where we found many of the things missed in this study that
they did and also the negligence on the Tonto National Forest
because they are more in cooperation with Resolution Copper
than with the Tribe. Now I am there to protect and witness what
is occurring so that I can explain to the American people--if
this goes through--what is a death, what is a murder, because
that is actually what is happening to this holy place.
Ms. Haaland. Thank you very much.
And Ms. Pike, first of all, how long have you been
advocating or how long have you been an activist on this issue?
Ms. Pike. I feel like my entire life. As Indigenous people,
our first breath is fighting.
Ms. Haaland. Thank you. Ms. Pike, you speak to the
importance of Apache culture and how it is an integral part of
your identity. Can you talk about the challenges that you faced
in your life as an Apache and how your cultural practices have
helped you to overcome those?
Ms. Pike. I think being here now is one of the challenges
that we face as Apache people, as being Indigenous, facing the
struggles of fighting for who we are, our language, our land,
our resources, our future and, as a woman, having to fight to
be able to bear a child and to try to teach that child, my
future children, what it is to be Apache and who it is to be
Indigenous, but to take them to a fence with a crater that is 2
miles wide. That is something that I am fighting. It is for our
And like my sunrise ceremony, for the boys to sing and do
the sweat at Oak Flat and for me to be able to pick the acorns
and the berries, that is what keeps us who we are. That is the
thing, the spiritual connection to Nagosun, to our Mother
Earth, to Usen, the Creator, to Chi'Chil Bildagoteel, and to
all sacred sites as Indigenous people, it is what keeps us here
today and now as being Apache and as being Indigenous.
Ms. Haaland. Thank you.
Chairman, with your permission, if I could just have one
more moment. First of all, I wanted to thank Reverend Barber
for being here. You are always here to be a voice for under-
represented people. And I personally appreciate your presence
here in this hearing room right now so very much. Thank you for
I also want to just mention that one of our colleagues,
they sent a message saying that we should cancel this hearing
because, essentially, the other side wasn't represented. But I
just have to say that I am sorry I wasn't here when this bill
was finagled into the NDAA. I am sorry that I didn't have a
voice in Congress when it was important. And I have to say that
when they do things like that, Native people, they are not
heard either. That side is never heard.
So, I think that if your organization, Apache Stronghold,
would have had a couple million dollars in the bank, you could
have hired some lobbyists to come out here and lobby every
single Congress Member to say, ``Please don't vote for this.
Please make sure that stays out of the NDAA because this will
affect the future of our Tribe,'' that perhaps we wouldn't even
be having this hearing right now.
I want to say that regardless of what happens, we all have
an obligation to stand up for under-represented people and
definitely for Native American sacred sites that are just
bulldozed, blasted. I mean, it is happening across the country.
I feel like this is a repeat of a hearing we had just a couple
weeks ago when sacred sites were being destroyed.
So, I want to just mention that and know that I feel like
Native folks and their sacred sites, they have waited long
enough. And this hearing is proper today. Thank you for showing
up, and thank you for coming all the way out here to defend
your land and to talk about what is important to you because
your voice has never been heard enough. Chairman, I yield.
Mr. Gallego. Thank you, Representative Haaland.
I now recognize Representative Garcia from Illinois.
Mr. Garcia. Thank you, Mr. Chairman, and thanks to the
witnesses who have come this morning to explain the
significance of the legislation before us. I am both deeply
saddened and angered at the same time that some of the members
of this Subcommittee would not take the time to come and hear
your story, to understand what is at stake and why this is so
important for the San Carlos Tribe, for the Apache people, and
for Native Americans. It is truly unfortunate and tragic that
this is happening in the 21st century once again.
What are the lessons that we learn? What have we
incorporated from our tragic history and the genocide that has
been inflicted on the Native American community across our
country? And as I ask that question, the answer seems to be
pretty clear. We discard the significance of what land means to
the original inhabitants of this country, of these lands. We
discard whatsoever what faith means and spirituality and what
sacredness is to these people. We hear a lot of talk about
religious freedom and protecting the rights of people
everywhere and their right to worship as they wish. And we
cannot practice that in our own country, in our own nation. We
cannot uphold that. It is truly shameful.
This is a total desecration of religious rights. This is an
insult to what is truly sacred to people. Sacredness cannot
just pertain to one faith, to one people, to one nationality,
to one ethnic group. It has to be embraced and respected for
all people. We are not doing that.
Finally, we seem to not understand what all of these things
mean for culture. Culture is the ability to sustain life, to
hand down to your children, to your grandchildren, to your
great grandchildren. And we are desecrating all of that because
we refuse to understand the essence of what it is to be a
Native person, a Native human being.
I am the newest member of this Committee, and I am appalled
that this is happening right before us and that we learned some
of the history of how this legislation came to be in the first
place. It was a parliamentary maneuver done in the dark,
violating the process and the spirit of how we seek to pass
legislation for all people, and to understand all of its
consequences in this instance, we have shut our eyes. And
darkness has produced an outcome that puts private enterprise,
multi-national interest, over the interest of those who can
call this country and these lands their lands. It is a shameful
I thank all of you for being here today. I thank the
Chairman for holding this hearing. And I hope that as you
continue in your fight for life, and your fight against
oppression, and your fight against all of the mighty odds that
you are facing, that all of us will come to learn something
from it and that we will be inspired to teach our children the
right way and that the only way forward, if we are to survive
as a Nation, as a society, and as a world, is to respect the
rights of all people. Thank you for being here today.
Mr. Gallego. Thank you, Representative Garcia. I now
recognize Chairman Raul Grijalva.
Mr. Grijalva. Thank you very much, Mr. Chairman, and thank
you for the hearing. And thank you for not postponing this
hearing. I think that it is very important. I think there is
the historical footnote that Mr. Nosie and Ms. Pike know very,
very well about, is that since 2005, 2006, efforts were made to
try to create this land exchange to benefit Rio Tinto. It
didn't happen. There was no support in the chambers and
certainly in the House of Representatives at that time.
And then comes a must-pass bill, 2014, which was the
legislation in which Section 303 was put in. It facilitated the
largest change. And I was struck, Mr. Chairman, by the other
side saying you should postpone this action because other
voices have to be heard that are in support of responsible
But I am glad you didn't because the voices, as Ms. Haaland
said, of the tribal folks that are here today and other experts
of the second panel and people from that community, it is
important to hear those voices. They weren't heard in the
middle of the night when it was stuck in that legislation.
There was no transparency. There was no honesty. There was no
process. It was just done in the behest of a major multi-
national mining company. That is why it was done.
And I think by allowing and giving status and respect to
the voices in opposition that we are doing ourselves a service
and doing this issue a tremendous service as well. I want to
ask you, Mr. Nosie, and I think it is a legitimate question to
ask, I hope. We have some tribal folks in the region that are
for the development of this mine. And they couldn't come here
because of restrictions in terms of travel and the virus.
And your response to that? I feel you are for it. But there
are some fundamental things that are going on in Indian Country
that supersede a lot of things. The pipeline that occurred for
the Sioux Nation, Chaco, and the protection of that area for
the Pueblos, what is going on with pipelines across this
country and through Indian Country--sacred sites being
destroyed for the O'odham people as we speak--all those things
are not protecting our trust responsibility as a Congress and
our responsibility to tribes and, more importantly, it is
weakening the sacred sites laws. It is weakening ceremonial,
And I think those areas, if anything else, need to be
strengthened going forward. But I think the biggest scam was we
are going to do the land trade. Then we are going to do some
analysis. And regardless of what that analysis says, the land
trade goes through anyway. So, there is no opportunity for the
Tribe or anyone else to be able to effect the change. You have
some tribal leaders in support of it. Your response to that,
Mr. Nosie. Very glad you asked that question because No. 1
is that I think that the government is familiar with it because
it happens all over the place. For instance, the individual
that was supposed to be here, the process in tribal government
is you have to have approval from your Tribal Council to speak.
And you have to go through the process from your Chairman to
the Council to come here to Washington and to speak on the
position of the Tribe. But what has happened is that when
Resolution Copper has come to Indian Country, they have come in
with an abundance of money and have fit programs and
opportunities that they are given thousands of dollars for
education and their robotics.
And they are helping with churches and they are bringing
all this money in, putting these leaders in a position, caught
in the middle of, where did they go, what did they do. And then
they are held accountable for Resolution Copper and also they
are held accountable to make those decisions for the Indian
people. And it puts them in a bad position. So, I always come
back to the point that a lot of these areas are suppressed. And
as long as they are suppressed, they could be used in that way.
So, Resolution Copper knows history. I mean, it is just
like, for instance, when John McCain came to me--years back
when I talked to him. What he said to me was, ``Hey, look. You
are on the reservation. Globe and Miami have been doing this to
you''--another word--``been doing this to you. And all you have
to do is develop on your reservation site and take their
business because we are going to reroute the highway on that
So, again, if I was that kind of person of not holding
morals, I would probably have jumped to what he was saying. But
because the communities of Globe, Miami, and Superior were
going to be affected, it was not right to hurt those people for
somebody's benefit. But those are the maneuvers that happen on
And it is really sad. But I am glad for the leaderships
because there are some leaderships that come back and hold
everybody together and say, ``Wait a minute. You are given an
oath of office.'' So, there they are reminded about the oath of
office and what it entails. But when you look at how they have
spread out into Arizona, this is why you don't have a lot of
people here, is because they have already spread their money
all out into the different tribes and different communities,
because in the very beginning, when we asked the mayors and
Council to show us the plan of operation, they never had it.
They never had any of that stuff.
But we did know that they were being given a lot of
promises. And a lot of those promises did not come to fruition
because when John McCain gave the exemption, they didn't have
to fulfill those obligations anymore. That is why today you
have 98, 99 percent opposing this because none of those things
filtered through except those that they bought off.
And it is sad to say not only in Indian Country but I think
in every race it happens. But when they only point out San
Carlos or the Indian people, they structure it in that argument
for only us. It is just like Mr. Gosar. I met him--this girl
was 9 years old when we met him in White Mountain--in that
discussion with Gosar when he was running for District 1, we
told him that this is what Ann Kirkpatrick did not do.
So, this is the argument. We want NEPA. On behalf of the
San Carlos Apache Tribe and tribes, we want NEPA. So, he tells
us, ``Oh, I will not do what Ann Kirkpatrick has done. Your
voice, the Native American voice, will be on the table, will be
there. I will stand for you and for your people. This isn't
And then what did he do to us the very next day when he got
elected? It didn't happen. So, anyway, in closing, it happens.
It happens out there and it is unfortunate. But I think you
guys are familiar with that.
Mr. Grijalva. Thank you, sir.
Mr. Gallego. Thank you, Mr. Nosie.
I want to thank the first panel for answering our
questions. The members of the Committee may have some
additional questions or statements for the witnesses, and we
will ask you to respond to these in writing.
I now invite Panel 2 to take their places at the witness
table. As with the previous panel, oral statements are limited
to 5 minutes, but your entire statement will be of the hearing
record. When you begin, the lights on the witness table will
turn green. After 4 minutes, a yellow light will come on. Your
time will have expired when the red light comes on, and I will
ask you to please wrap up your statement. I will also allow the
entire panel to testify before we question the witnesses.
Mr. Garcia. Thank you, Mr. Chairman. Just as a point of
privilege, I would like to again also welcome Reverend Barber.
I really thank you for being here today. We appreciate all of
the work that you do on behalf of poor people, on behalf of
bringing our country together, your fight for religious freedom
for all and, of course, your unquenching thirst for human
rights for everyone on the planet and certainly in our country.
It is great to have you here today. God bless you, sir. Thank
Mr. Gallego. Thank you, Representative Garcia. Now I would
like to introduce our distinguished guests. The Chair now
recognizes Dr. Steven Emerman, an expert in hydrology and
geophysics with 31 years of experience and the owner of Malach
STATEMENT OF DR. STEVEN EMERMAN, OWNER, MALACH CONSULTING,
SPANISH FORK, UTAH
Dr. Emerman. Thank you very much for the opportunity to
testify. I am Dr. Steven Emerman. I was a professor of geology
for over 30 years. I have studied and worked on issues related
to groundwater and mining for over 40 years. I am not anti-
mining by any stretch, but this is the worst mining project I
have ever encountered.
I will talk about four things: (1) underestimation of water
consumption; (2) underestimation of electricity consumption;
(3) the extent of the crater, especially the potential impact
on Apache Leap; and (4) catastrophic danger to communities
downstream from the tailings dams.
My approach is based upon the precautionary principle which
states that one should be ultra-conservative when faced with
great danger and great uncertainty. Representative Gosar agreed
with this principle in his recent press release by self-
quarantining himself due to Coronavirus concerns. According to
Rio Tinto, the foreign company that owns Resolution Copper, the
mine will consume 15,700 acre-feet of water per year.
This number has never been justified. Based on copper
mining industry standards, 50,000 acre-feet per year would be a
better estimate. That is, every year, a column of water
covering a football field and 10 miles high. This mine will
consume an enormous amount of water simply to transport the
tailings through a 25-mile pipeline to the toxic waste dump.
Water that is consumed is never coming back.
In terms of electricity, the key unknown is the power
required to pump out the large amount of nearly boiling
geothermal water pouring into the mine and to refrigerate the
mine. It will be 180 degrees in the mine. Humans cannot survive
at that temperature. The mine could consume 22 percent of the
peak power capacity of the Salt River Project which provides
power to more than 2 million people. The peak power capacity is
the blackout threshold.
According to the DEIS, the block-cave mining will create a
crater with a maximum depth of 800 to 1,115 feet. Oak Flat will
be destroyed and, according to Rio Tinto, the DEIS, the closest
approach of the subsidence zone to Apache Leap will be 1,115
feet. However, just based upon the uncertainty in the crater
depth, the probability that the subsidence zone will reach
Apache Leap is 9 percent.
The probability is even greater because there are many
questionable aspects of a subsidence modeling of the DEIS. The
DEIS simply repeats the claims of Rio Tinto without
justification. Tailings are the crushed rock particles that
remain from the ore body after the copper has been removed.
These tailings will be stored on the surface behind a dam that
will be made from the tailings themselves. One of these
tailings dams, the Brumadinho Dam, failed in Brazil last year.
The flood of tailings traveled 75 miles per hour and killed 270
people. This Brumadinho Dam released 12.7 million cubic yards
of tailings. By contrast, the tailings dam at the Resolution
Copper Mine will store 1,315 million cubic yards, which is
greater by a factor of over 100.
It is not a question of if this tailings dam will fail, but
when. At the end of the project, Rio Tinto will walk away from
this dam, and it will receive no further inspection or
maintenance so that eventually it will fail. All the proposed
sites for tailings dams, the DEIS, are upstream from and very
close to communities.
The Silver King site is 2,500 feet above Superior. The dam
at that site would be 1,040 feet high, the tallest tailings dam
ever built by an extra 390 feet. The near west site is 19,000
feet above Queen Valley. The Peg Leg site is 10.3 miles above
Florence, a town with over 26,000 people.
The Skunk Camp site is 17,000 feet above Dripping Springs.
In the last year alone, three countries have restricted the
distances between tailings dams and communities. Brazil has
said the tailings dams cannot be built where there is a
community within 10 kilometers downstream of the dam. That
distance can be extended up to 25 kilometers depending upon
population density. Ecuador has adopted the same regulations.
China has said that tailings dams cannot be built within 1
kilometer of a community.
It should make you stop and think that we are seriously
discussing a mining project in Arizona that would be illegal
even in China. My recommendation is don't do it. Don't let this
project go forward.
[The prepared statement of Dr. Emerman follows:]
Prepared Statement of Steven H. Emerman, Ph.D.\1\
\1\ Dr. Emerman earned a B.S. in Mathematics from The Ohio State
University, M.A. in Geophysics from Princeton University, and Ph.D. in
Geophysics from Cornell University. He has 31 years of experience
teaching hydrology and geophysics and has 66 peer-reviewed publications
in these areas. He is the owner of Malach Consulting, which specializes
in evaluating the environmental impacts of mining for mining companies,
as well as governmental agencies and non-governmental organizations.
1. Predicted water consumption of the Resolution Copper Mine is
50,000 acre-feet per year.
2. Although Rio Tinto has promised water consumption of only
15,700 acre-feet per year (about one-third of industry
standards), they are using only conventional technologies
for achieving water efficiency.
3. Export of water of tailings alone would result in a consumption
of 25,600 acre-feet per year.
4. Under the best-case scenario, the completed underground mine
will encounter geothermal water at a flow rate of 3,800
5. Under the best-case scenario, the additional power requirements
for mine dewatering and refrigeration will be 24 MW.
6. The worst-case scenario is difficult to estimate, but if more
highly fractured rock is encountered during construction of
the underground mine, the entry rate of geothermal water
could easily be 100 times greater.
7. The predicted electricity consumption of the Resolution Copper
Mine is 260 MW and 1,900 MW under the best-case and worst-
case scenarios, which are 3 percent and 22 percent,
respectively, of the peak power capacity of the Salt River
8. The predictions of land subsidence due to block caving cannot
be verified because Rio Tinto has provided neither the
input data nor the details of the modeling.
9. The only exception to the lack of data is the map of geological
faults, which is inconsistent with the satellite imagery
that shows a pronounced lineament nearly parallel to and
offset by 2,000 feet from the mapped West Boundary Fault.
This lineament would most likely be the zone of structural
weakness that would transmit deformation from the caved
rock zone to the culturally sensitive escarpment of Apache
10. The subsidence monitoring program proposed by Rio Tinto
explicitly assumes that subsidence will be slow,
predictable and controlled, which is inconsistent with the
past history of block caving and authoritative manuals on
11. No error bounds have been provided on the predictions of the
lateral extent of the subsidence zone.
12. Based on the range in predictions of the maximum depth of the
subsidence crater, the probability that the subsidence zone
would reach Apache Leap can be estimated as 8.9 percent.
13. Using a statistical model based on previous tailings dam
failures, the predicted runouts from failures of the five
alternative tailings storage facilities would be in the
range 200-370 miles.
14. Although the flow potential of filtered tailings is less than
that of thickened tailings, even if the failures of the dam
for the filtered tailings (Silver King site) caused only
slumping of the tailings, they would travel at least 10,400
feet, and would impact the town of Superior (population
2,837) at a minimum distance of 2,500 feet.
15. The unincorporated area of Queen Valley (population 820) would
be impacted by the failures of the Near West facilities
(minimum distance 19,000 feet) or of the Silver King
facility (minimum distance 8.2 miles). The town of Florence
(population 26,074) would be impacted by the failures of
the Peg Leg facility (minimum distance 10.3 miles), either
of the Near West facilities (minimum distance 16.0 miles),
or Silver King facility (minimum distance 20.5 miles). The
unincorporated area of Dripping Springs (population 235)
would be impacted by the failure of the Skunk Camp facility
(minimum distance 17,000 feet).
16. Dripping Springs, Queen Valley and Superior are all well within
the ``self-rescue zone'' (where no rescue from the outside
is possible) in recent Brazilian legislation.
17. The proximity of the tailings dams to downstream communities
would be illegal in Brazil, China and Ecuador.
Rio Tinto has predicted water consumption for the proposed
Resolution Copper Mine, Arizona, as 15,700 acre-feet per year,
although, based on the grade and production rate, water consumption of
50,000 acre-feet per year would be more typical. The proposed
technologies would result in the export of cleaner tailings with 50
percent water, scavenger tailings with 35 percent water, and copper
concentrates with 9 percent water, resulting in water consumption of
25,600 acre-feet of water per year by the tailings storage alone. Based
on the depth, grade, and production rate, the projected electricity
consumption would be 236 MW. However, the discovery of geothermal water
while drilling the primary access shaft could result in additional
electricity consumption of 24 MW solely for mine dewatering and
refrigeration under the best-case scenario and 1,650 MW under the
worst-case scenario, corresponding to total electricity consumption of
260 MW and 1,900 MW, or 3-22 percent of the peak power capacity of the
Salt River Project. The DEIS has predicted that the maximum depth of
the crater produced by block caving will be 1,115 feet, but that the
subsidence zone will reach only 1,115 feet from the culturally
sensitive escarpment of Apache Leap, without providing the input data,
the details of the modeling, or the error bounds in the prediction of
the subsidence zone. The only exception is a geological fault map, for
which satellite imagery shows the West Boundary Fault, which connects
the footprint of the ore body with Apache Leap, being mapped in the
wrong location by 2,000 feet. Unanticipated subsidence occurs in 20
percent of block caving projects and the manual relied upon by Rio
Tinto emphasizes the known risks of rapid subsidence. Based upon the
uncertainty in the prediction of maximum crater depth, the probability
that the subsidence zone will reach Apache Leap is 9 percent. Using a
statistical model based on previous tailings dam failures, the runouts
from the failures of the five alternative sites for the tailings
storage facilities would be in the range 200-370 miles. The Silver
King, Near West, Peg Leg and Skunk Camp sites would be 2,500 feet,
19,000 feet, 10.3 miles, and 17,000 feet upstream from Superior
(population 2,837), Queen Valley (population 820), Florence (population
26,074) and Dripping Springs (population 235), respectively. The
proximity of the alternative sites for the tailings dams to downstream
communities would be illegal in Brazil, China and Ecuador.
Rio Tinto has submitted a proposal to the U.S. Forest Service for
an underground copper mine, called the Resolution Copper Mine, within a
mix of Federal public land (Tonto National Forest), Arizona state trust
land, and private land (see Fig. 1). The proposal includes an exchange
of 5,344 acres of land privately held by Rio Tinto for 2,422 acres of
the Tonto National Forest. The porphyry copper deposit occurs 5,000-
7,000 feet beneath the surface and has an inferred resource of 1,790
million tons with a copper grade of 1.47 percent. The ore processing
rate is predicted to be 120,000 metric tons per day with a maximum
processing rate of 150,000 metric tons per day (Resolution Copper
Mining, 2014a-c). According to Rio Tinto, the water consumption will be
15,700 acre-feet per year at full operation (Resolution Copper Mining,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 1. Rio Tinto has submitted a proposal for an underground
copper mine, called the Resolution Copper Mine, within a mix of Federal
public land (Tonto National Forest), Arizona state trust land, and
private land, which would process 120,000 metric tons of ore per day
with a maximum processing rate of 150,000 metric tons per day from an
ore body that lies 5,000-7,000 feet below the surface. Figure from
Resolution Copper Mining (2014b).
The Draft Environmental Impact Statement (DEIS) (USDA, 2019)
estimates an electricity consumption of 250-280 MW. The estimate
includes 6.45 MW and 6 MW for mine dewatering and refrigeration,
respectively, but without further explanation, and without explicitly
taking into account the discovery of geothermal water in December 2012.
During the drilling of the 6,943-foot-deep, 28-foot-diameter No. 10
shaft, geothermal water at a temperature of 170+F began entering the
shaft at a rate of 460 gpm (E&MJ, 2014). According to Tom Goodell,
general manager--shaft development for Resolution Copper,
``Productivity flattened out at 6,500 feet . . . The consultants told
us that we would have little or no water below 4,000 feet . . . They
kind of missed that call. We hit it all in one spot and it was quite
dramatic'' (E&MJ, 2014). The Arizona Daily Star confirmed, ``Shaft-
sinking equipment had reached a depth of about 6,500 feet when water
from an underground aquifer began rushing in. The miners were prepared
to handle 80 gallons per minute, which is what core samples from 30
feet away predicted'' (Bregel, 2016). Later reports indicated that the
entry rate of geothermal water into the No. 10 shaft had increased by
over a factor of three to 1,400 gpm and that the temperature of the
geothermal water was 180+F (Bregel, 2016; Phillips, 2016).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 2. The subsidence zone can be divided into the caved
rock zone, the fractured zone and the continuous subsidence zone. The
caved rock zone is the zone of greatest vertical displacement and
consists of fragmented rocks of all sizes. The fractured zone is the
zone where visible deformation can be seen on the surface, including
cracks and slumps. In the continuous subsidence zone, deformation can
be detected only by high-resolution monitoring equipment. The region
outside of the subsidence zone is called the stable zone. Figure from
Resolution Copper Mining (2014c).
Mining would be carried out using block caving, a type of
underground mining that involves controlled cave-ins of overlying rock,
and which includes land subsidence as a typical consequence (see Fig.
2). Subsidence modeling was based upon surface mapping, core samples,
and high-resolution photography from the No. 10 Shaft. Data from the
drill core samples included rock strength testing, as well as
observations regarding major structures, total core recovery,
artificial breaks, rock quality designation, solid core recovery, solid
length, minor defects, cemented joints, and open joints. According to
the DEIS (USDA, 2019), the maximum land subsidence in the center of the
crater would be 1,115 feet, and the closest approach of the subsidence
zone to the culturally sensitive escarpment of Apache Leap would also
be 1,115 feet (see Fig. 3). The mining proposal also describes an
extensive program of subsidence monitoring before, during and after the
life of the mining project (Resolution Copper Mining, 2014a-c).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 3. According to the DEIS (USDA, 2019), the culturally
sensitive escarpment of Apache Leap will be 1,115 feet outside of the
subsidence zone even after 40 years of block cave mining. The contours
marked by years indicate the limits of the caved rock zone (see Fig. 2)
after 10, 20, 30 and 40 years of mining. The lineament shown in Fig. 6
can be seen to intersect the caved rock zone in the above figure.
Figure modified from Resolution Copper Mining (2014a).
The DEIS presents five alternative plans for the tailings storage
facilities for the proposed mine (USDA, 2019). By DEIS conventions,
Alternative #1 is the ``no-action'' alternative. Alternative #2, the
preferred alternative that was presented in the General Plan of
Operations (GPO) (Resolution Copper Mining, 2014a-c), involves storing
tailings thickened into a slurry (65 percent solids for scavenger
tailings, 50 percent solids for cleaner tailings) at the Near West site
behind a 520-foot-high tailings dam (see Fig. 4). Alternatives #2 and
#3 are nearly spatially coincident at the Near West site (see Fig. 4).
Alternative #3 involves slightly thicker scavenger tailings (70 percent
solids) and a slightly lower dam (510 feet). Alternative #4 would
involve the storage of filtered tailings (86-89 percent solids) at the
Silver King site to a height of 1,040 feet (see Fig. 4, Table 1). The
dam for the Silver King site would be a ``structural zone'' of tailings
built around the perimeter (SWCA Environmental Consultants, 2018) and
would be the tallest tailings dam ever constructed. (The current
tallest tailings dam in the world is the 650-foot-high Quillayes Dam at
the Los Pelambres Mine in Chile (Campana et al., 2015)). Alternative #5
involves the storage of thickened tailings (60 percent solids for
scavenger tailings, 50 percent solids for cleaner tailings) behind a
310-foot-high tailings dam at the Peg Leg site (see Fig. 4, Table 1).
The final Alternative #6, which is the preferred alternative in the
DEIS, involves the storage of similarly thickened tailings (60 percent
solids for scavenger tailings, 50 percent solids for cleaner tailings)
behind a 490-foot-high tailings dam at the Skunk Camp site (see Fig. 4,
Table 1). The total volumes of stored tailings have been predicted as
1,315.45 million cubic yards for the sites storing thickened tailings
and 1,188.98 million cubic yards for the site storing filtered tailings
(see Table 1; USDA, 2019).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 4. Out of the five alternatives for the tailings storage
facilities for the proposed Resolution Copper Mine, four would store
thickened tailings, while one would store filtered tailings. Two
alternatives at the Near West site are nearly spatially coincident,
with the alternative with thickest tailings being slightly larger.
Failure of the Silver King facility would impact the town of Superior
(population 2,837). The unincorporated area of Queen Valley (population
820) would be impacted by the failures of the Silver King or either of
the Near West facilities. The town of Florence (population 26,074)
would be impacted by the failures of the Peg Leg, Silver King, or
either of the Near West facilities. The unincorporated area of Dripping
Springs (population 235) would be impacted by the failure of the Skunk
Camp facility. Background combines Google Earth imagery from December
6, 2014, January 13, 2018, and April 6, 2018.
According to the DEIS (USDA, 2019), the design earthquake for the
tailings dams would be the Maximum Credible Earthquake (MCE), which is
defined as ``the largest earthquake magnitude that could occur along a
recognized fault or within a particular seismotectonic province or
source area under the current tectonic framework'' (FEMA, 2005).
However, the DEIS also states without justification, ``Analysis
indicates Maximum Credible Earthquake is equivalent to 10,000-year
return period [annual exceedance probability of 0.01%].'' On the
contrary, in the context of discussing criteria for determining the MCE
at a particular location, FEMA (2005) states, ``For high-hazard
potential dams, movement of faults within the range of 35,000 to
100,000 years BP is considered recent enough to warrant an `active' or
`capable' classification.'' In other words, the MCE can be as rare as a
100,000-year earthquake, with a corresponding annual exceedance
probability of 0.001 percent. In addition, nothing in the DEIS explains
how the tailings dams will be built so that they will withstand the
10,000-year earthquake. For example, there is no seismic stability
analysis of any of the proposed designs anywhere in the DEIS.
Table 1. Predicted Runout following Tailings Dam Failure
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questions that must be answered about the mine
This testimony addresses the following pressing questions for the
1. What is the projected water consumption of the mine?
2. What is the projected electricity consumption of the mine?
3. Did the prediction of subsidence use correct input data, does the
mining project have an adequate subsidence monitoring
program, and is there a sufficiently low probability that
the subsidence will impact Apache Leap?
4. What would be the consequence of failure of the tailings dams and
is there an adequate distance between each of the proposed
tailings dams and the downstream communities?
This testimony is a summary of four detailed reports (Emerman,
2018, 2019a-c) that are available on the website of the Arizona Mining
Reform Coalition. Those reports were based upon the GPO (Resolution
Copper Mining, 2014a-c) and have been updated in this summary to
include changes in the DEIS (USDA, 2019).
The expected flow rate of geothermal water into the completed
underground mine was calculated by combining the Thiem Equation with
the radius of the completed mine (1,400 feet). The Hazen-Williams
Equation was used to calculate the power required to dewater the mine.
The best-case scenario (minimum electricity consumption for dewatering
and refrigeration) was based upon the following assumptions:
1. The flow of geothermal water into the No. 10 shaft has achieved a
2. The aquifer has uniform transmissivity (product of aquifer
thickness and hydraulic conductivity).
3. The recharge rate of the aquifer does not exceed 0.1 inches per
4. All mine dewatering can be carried out through a single vertical
5. The mine can be refrigerated with maximum theoretical efficiency.
The projected electricity and water consumption were addressed
based on a literature review that considered the particular aspects of
the Resolution Copper Mine (such as the depth and grade). Land
subsidence was addressed using Google Earth images and A Practical
Manual on Block Caving (Laubscher, 2000). The runout following tailings
dam failure was calculated using a statistical model based on the
history of tailings dam failures (Larrauri and Lall, 2018). The impact
of the tailings flow on the local population was then addressed by
determining whether the watersheds of local population centers
intersected the footprint of the proposed tailings storage facilities
within a distance that was at least as great as the predicted runout.
The local population centers include the incorporated towns of Superior
(population 2,837) and Florence (population 26,074), and the
unincorporated census-designated places of Queen Valley (population
820) and Dripping Springs (population 235) (see Fig. 4).
results and discussion
Northey et al. (2013) emphasized the large variation in water
consumption among copper mines worldwide and gave 74 m3/t Cu
as a global average, corresponding to an estimate for the Resolution
Copper Mine of 48,000 acre-feet of water per year. The advantage of
restricting the dataset to Arizona is that it takes into account the
high evaporation rates that might not be present at copper mines in the
rest of the world. Using the data in Singh (2010) from seven Arizona
copper mines resulted in an average water consumption of 28.3 gallons
per pound of copper, corresponding to 154,000 acre-feet per year for
the Resolution Copper Mine. According to the EIS, the projected water
consumptions by the Safford mine (which began full production in 2008)
and the Rosemont mine (which has not opened) are 7.5 and 7.4 gallons
per pound of copper, corresponding to water consumption rates for the
Resolution Copper Mine of 41,000 and 40,000 acre-feet of water per
year, respectively. Taking into account the fact that the water
consumption rates for the newer mines are only projections and not
actual measurements, the best prediction for water consumption by the
Resolution Copper Mine is 50,000 acre-feet per year, which is also
quite close to the global average (Northey et al., 2013).
The only explanation from Rio Tinto for the above discrepancy with
their prediction of water consumption of 15,700 acre-feet per year has
been their promise that, ``Maximizing water reuse is critical to the
Resolution Project from a physical resource and cost perspective. Reuse
and reclaim water supplies will be used for mine operations to the
greatest extent possible, including water from mine dewatering,
tailings dewatering, seepage collection, overflow water from the
copper/molybdenum thickeners and tailings thickeners, and concentrate
filtrate'' (Resolution Copper Mining, 2014a). In opposition to the
above quote, the GPO (Resolution Copper Mining, 2014a-c) describes only
the most conventional technologies for water efficiency. The only areas
for which specific water losses have been calculated are the water
entrained with the copper concentrate (9 percent water), which is
shipped off-site for further refining, and the water entrained with the
cleaner tailings (35 percent water) and the scavenger tailings (50
percent water), which are exported to the tailings storage facility.
Based upon the above values, the water exported to the tailings storage
facility would be 25,600 acre-feet per year, which is already 10,100
acre-feet per year greater than the water consumption of 15,700 acre-
feet per year that was predicted by Rio Tinto (Resolution Copper
The most reliable estimate for electricity consumption by copper
mining is probably that of Koppelaar and Koppelaar (2016), who used the
most recent and complete dataset, and who explicitly took depth and
grade into account. Combining the depth, grade and ore production rate
of the Resolution Copper Mine with Eq. (3) from Koppelaar and Koppelaar
(2016) yields 236 MW. The additional electricity consumption required
to dewater and refrigerate the mine due to the entry of geothermal
water should be added to the above estimate, since the need to remove
and mitigate the impact of geothermal water would not normally be a
factor in the power requirements of a typical copper mine. Of the five
assumptions that led to the best-case estimate for electricity
consumption by dewatering and refrigeration, the violation of the
second assumption (uniform aquifer transmissivity) would have the
greatest consequences. Aquifer thickness can vary somewhat, but
hydraulic conductivities of fractured crystalline rock can vary by four
orders of magnitude (Charbeneau, 2000). The real worst-case scenario is
that, as the underground mine expands, it encounters increasingly
fractured rock. If hydraulic conductivity increases by two orders of
magnitude, then the entry rate for geothermal water could increase from
the 3,800 gpm that would occur from expanding the mine with uniform
hydraulic conductivity up to 380,000 gpm. Assuming pipes with zero head
loss would result in a power requirement under the ``minimum'' worst-
case scenario of 1,650 MW (500 MW for dewatering and 1,150 MW for
refrigeration). Therefore, the appropriate best estimates for the
electricity consumption of the Resolution Copper Mine under the best-
case (minimum input of geothermal water) and worst-case (maximum input
of geothermal water) should be 260 MW and 1,900 MW, respectively.
The predictions of electricity consumption for the Resolution
Copper Mine can now be compared with the available sources of
electricity. For Fiscal Year 2018, the Salt River Project (2019)
reported peak power of 7,610 MW and peak power capacity of 8,801 MW.
The above predictions of electricity consumption correspond to 3
percent and 22 percent of the peak power capacity of the Salt River
Project under the best-case and worst-case scenarios, respectively. The
predicted electricity consumption for the Resolution Copper Mine would
be equivalent to the electricity consumed by 219,000 and 1.6 million
U.S. households under the best-case and worst-case scenarios,
respectively (EIA, 2019). There is certainly no mention on the website
of the Salt River Project or anywhere else for plans to increase power
capacity to accommodate the Resolution Copper Mine.
The actual data that were used in the subsidence modeling are not
presented in any documents that have been provided by Rio Tinto. On
that basis, there is no way for anyone not affiliated with Rio Tinto to
repeat the subsidence modeling or to carry out his or her own
subsidence modeling. Even the description of the data is inadequate for
assessing the validity of the subsidence modeling. The most important
information that is missing are the numbers of drill cores and the
depths of the drill cores. The only exception to the lack of input data
is the map of the geological faults that were used in the subsidence
modeling (see Fig. 5). The primary control on the ability of block
caving to transmit deformation to Apache Leap should be any faults that
connect Apache Leap to the surface footprint of the block caving area,
so that the most important fault is the West Boundary Fault (compare
Figs. 3 and 5).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 5. The most important structural controls on land
subsidence caused by block caving are the locations and physical
properties of geological faults. The above map shows the mapped faults
that were used in the modeling (see Fig. 3). For predicting the impact
of block caving on Apache Leap, the mapping of the West Boundary Fault
is the most important since it connects the mining area with Apache
Leap (see Fig. 3). Figure from Resolution Copper Mining (2014c).
The superposition of the West Boundary Fault (as mapped in Fig. 5)
onto a Google Earth image shows a pronounced lineament that is
subparallel to the West Boundary Fault and offset from the fault by
about 2,000 feet (see Fig. 6). The nearly parallel orientations of the
West Boundary Fault and the lineament are certainly suggestive that the
West Boundary Fault has been incorrectly mapped, and there is no other
mapped fault that could correspond to the lineament (see Figs. 5-6).
Unlike the mapped West Boundary Fault, the lineament intersects the
caved rock zone (see Fig. 3), so that there is potential for
deformation to be transmitted from the caved rock zone to Apache Leap.
On this basis, there could have been an underestimation of the extent
of the subsidence zone.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsFigure 6. The West Boundary Fault (Fig. 5) is subparallel to
and offset by 2,000 feet from a pronounced lineament that is visible
from satellite imagery. The lineament does not correspond to any other
mapped fault that was used in subsidence modeling (Fig. 5), which
suggests that not all geological faults have been correctly mapped. The
faults and other zones of weakness that connect Apache Leap with the
mining area are the most important in predicting the impact of
subsidence caused by block caving on Apache Leap. Google Earth imagery
is from Dec. 6, 2014.
With regard to the subsidence monitoring program, the primary issue
is not Rio Tinto's ability to document subsidence, but their ability to
take appropriate action in response to unanticipated subsidence. A
comprehensive database of subsidence caused by block caving reported
that unanticipated subsidence has occurred in 20 percent of block
caving projects with most of the anomalies being related to geological
faults (Tetra Tech, Inc. and R Squared, Inc., 2006; Woo et al., 2013).
The connection between observation and action is based on the explicit
assumption that ``Subsidence is a slow and gradual process that is
predicted, closely monitored, and controlled'' (Resolution Copper
Mining, 2014a) and that ``Subsidence is a rather slow and continuous
process, and as such there would be time to apply an adaptive
monitoring plan if required'' (Resolution Copper Mining, 2014c).
By contrast, Laubscher (2000), the only reference on block caving
that is cited in the GPO (Resolution Copper Mining, 2014c), repeatedly
draws attention to the dangers of both rapid subsidence and rockbursts.
Some examples of the discussion of rapid subsidence are ``Lateral
extension or subsidence caving as it was previously described, occurs
when adjacent mining has removed the lateral restraint on the block
being caved. This can result in rapid propagation of the cave with
limited bulking . . . There can be a rapid propagation of the cave with
massive wedge failures if a well developed relaxation zone has formed
ahead of the cave front'' (Laubscher, 2000). Some examples of
discussion of the related problem of rockbursts are ``The potential
effects of a block cave on installations located in the peripheries of
the block include . . . shear displacements on faults and shear zones.
These could produce rockbursts . . . Cave mining of deep, hard rock
orebodies, involving removal of large volumes of rock, will inevitably
lead to the generation of mining-induced seismicity, which may lead to
rockbursts . . . The location of the source of the seismicity and the
location of the rockburst damage may or may not be coincident. In the
larger magnitude events, the separation of the two locations may be
hundreds of meters . . . Rockbursts have become a major problem on
block caving mines in competent rock, where the regional principal
stress is >35 MPa'' (Laubscher, 2000).
The predictions of the limits of the caved rock, fractured and
continuous subsidence zones contain no uncertainties or error bounds of
any kind (see Figs. 2-3). Presumably, all predictions are simply the
best estimates and not the worst-case scenarios. The only exception to
the lack of error bounds in subsidence predictions are the predicted
maximum depth of the crater above the ore body. According to the DEIS
(USDA, 2019), the maximum depth is projected to range between 800 and
1,115 feet in depth. The above range of depths could be re-expressed as
a predicted depth of 957.5 157.5 feet. If the uncertainty
(157.5 feet) is assumed to be the standard deviation, then the
coefficient of variation (ratio of standard deviation to mean) of the
predicted maximum depth is 16.4 percent. In the absence of other
information, the same coefficient of variation could be assumed to
apply to other aspects of the subsidence predictions.
Based on the uncertainty in the maximum crater depth, the
uncertainty in the prediction of the approach of the subsidence zone to
Apache Leap can also be assessed. Based on Fig. 3, the predicted
distance from the center of the ore body to the outer limit of the
subsidence zone in the direction of Apache Leap is 5,035 feet. Assuming
a coefficient of variation of 16.4 percent, the standard deviation of
that prediction is 828 feet. Since the closest approach of the
subsidence zone to Apache Leap is 1,115 feet (USDA, 2019), the distance
between the eastern edge of Apache Leap and the center of the ore body
is 6,150 feet. Then assuming that the population of predictions of the
distance of the outer edge of the subsidence zone from the center of
the ore body follows a normal distribution with mean equal to 5,035
feet and standard deviation equal to 828 feet, the probability that the
outer limit of the subsidence zone will extend onto Apache Leap or
beyond is 8.9 percent.
Consequences of Tailings Dam Failure
Predicted runouts due to failure of the tailings dams at each of
the five alternative tailings storage facilities range from 201 miles
(Peg Leg site) to 370 miles (Silver King site; see Table 1). Although
the predicted runouts may seem surprisingly large, it should be noted
that, compared to past tailings dam failures, the impounded volumes and
dam heights are ``off the charts.'' For the Resolution Copper Mine, the
impounded volumes are either 1,315.45 million cubic yards for thickened
tailings or 1,188.98 million cubic yards for filtered tailings (USDA,
2019; see Table 1). By contrast, the largest volume of impounded
tailings at any tailings dam that has failed thus far was 97 million
cubic yards at the Mount Polley Mine in British Columbia that failed in
2014 (Larrauri and Lall, 2018). Moreover, the tallest tailings dam that
has failed thus far was the 295-foot-high Fundao Dam at the Samarco
Mine in Brazil that failed in 2015 (Larrauri and Lall, 2018), which was
not as tall as any of the proposed tailings dams for the Resolution
Copper Mine (see Table 1). Predicted spill volumes, which depend only
upon the impounded volume are either 309.1 million cubic yards for
thickened tailings or 280.8 million cubic yards for filtered tailings
(see Table 1). Again, by contrast, the largest tailings spill that has
occurred thus far was 42 million cubic yards from the failure of the
Fundao Dam (Larrauri and Lall, 2018). The important point is that
tailings dam failures could have very wide-ranging impacts, extending
over hundreds of miles, and that the local population centers (see Fig.
4) are simply the ``front line'' of affected populations. It could be
argued that the statistical model based upon past tailings dams
failures does not apply to the Silver King site, which will store
filtered tailings. However, even in the best-case scenario, a failure
of the tailings dam at the Silver King site would result in the slump
of the filtered tailings that would extend for a distance of roughly 10
times the dam height or 10,400 feet (Klohn Crippen Berger, 2017).
All of the local population centers include at least one proposed
tailings dam in its watershed, so that the failure of each of the five
alternatives has the potential to result in the loss of human life. It
has already been shown that the predicted runouts are so large that the
ability of a tailings spill to reach the above-mentioned local
population centers is not a factor. The watershed of Superior includes
the Silver King site at a minimum distance of 2,500 feet (see Fig. 4).
Even a slump of filtered tailings with no added water would nearly
cover the entire town of Superior. The unincorporated area of Queen
Valley would be impacted by the failures of either of the Near West
facilities (minimum distance 19,000 feet) or of the Silver King
facility (minimum distance 8.2 miles; see Fig. 4). The town of Florence
would be impacted by the failures of the Peg Leg facility (minimum
distance 10.3 miles), either of the Near West facilities (minimum
distance 16.0 miles), or the Silver King facility (minimum distance
20.5 miles; see Fig. 2). Based on the Digital Elevation Models (DEMs),
the watershed of Dripping Springs does not include the Skunk Camp
facility. However, Dripping Springs sits on the bank of Dripping
Springs Wash, which would be quite likely to overflow following a
tailings spill from the Skunk Camp site, a minimum distance of 17,000
feet from Dripping Springs (see Fig. 4). Following the failure of the
tailings dam at the Corrego do Feijao Mine in Brazil on January 25,
2019, which resulted in 308 people missing or confirmed dead, the new
Brazilian mining regulations and legislation introduced the concept of
``zonas de autossalvamento,'' which are literally the ``self-rescue
zones'' or the zones in which each person must rescue himself or
herself because no rescue from the outside will be possible (Agencia
Nacional de Mineracao [National Mining Agency], 2019; Assembleia
Legislativa de Minas Gerais [Legislative Assembly of Minas Gerais],
2019). This ``self-rescue zone'' has been defined as either 10
kilometers (6.2 miles) along the course of the valley or the portion of
the valley that can be reached by the tailings flow within 30 minutes,
whichever is greater (Assembleia Legislativa de Minas Gerais, 2019).
That distance can be extended to 25 kilometers (15.5 miles) depending
upon the population density and the natural and cultural heritage. In
the Brazilian state of Minas Gerais, it is currently illegal to
construct a tailings dam where there is a population residing in the
``self-rescue zone'' (Assembleia Legislativa de Minas Gerais, 2019). It
should be noted that the town of Superior and the unincorporated areas
of Dripping Springs and Queen Valley are all well within this ``self-
rescue zone.'' Ecuador (Valencia, 2019) has followed suit in adopting
the same regulations. China has also considered the proximity of
tailings dams to populated areas and has prohibited the construction of
tailings dams within 1 kilometer (3,281 feet) upstream of residential
neighborhoods, industrial facilities, or markets (Zhang and Daly,
2019). Although of course, the U.S. Forest Service would not be bound
by any legislation passed in Brazil, China or Ecuador, the proposal for
a mining project in Arizona that would be illegal in a developing
country should be a cause for pause and reflection.
Agencia Nacional de Mineracao [National Mining Agency], 2019. Resolucao
No. 4, de 15 de Fevereiro de 2019 [Resolution No. 4 of February 15,
2019], 1 p. Available at: http://www.in.gov.br/materia/-/
Assembleia Legislativa de Minas Gerais [Legislative Assembly of Minas
Gerais], 2019. Legislacao Mineira (Lei 23291, de 25/02/2019) [Mining
Legislation of February 25, 2019]. Available at: https://
Bregel, E., 2016. Resolution Copper mine--venturing 7,000 feet below
Earth's surface: Arizona Daily Star, June 4, 2016. Available online at:
earth-s-surface/article_44ca18f8-7 a29-55 62-9833-dd6611c968fc.html.
Campana, J., L. Valenzuela, and A. Figueroa, 2015. The Quillayes sand
tailings dam in Chile--design and operation: Proceedings Tailings and
Mine Waste 2015 Vancouver, BC, 14 p. Available online at: https://
Charbeneau, R.J., 2000. Groundwater hydraulics and pollutant transport:
Long Grove, Illinois, Waveland Press, 593 p.
EIA (U.S. Energy Administration Information), 2019. Frequently Asked
Questions. Available online at: https://www.eia.gov/tools/faqs/
Emerman, S.H., 2018. Potential impact of geothermal water on the
financial success of the Resolution Copper Mine, Arizona: Report to
Arizona Mining Reform Coalition, 14 p. Available online at: https://
Emerman, S.H., 2019a. Projected consumption of electricity and water by
the proposed Resolution Copper mine, Arizona: Report to Arizona Mining
Reform Coalition, 13 p. Available online at: https://
Emerman, S.H., 2019b. Evaluation of predictions of land subsidence due
to panel caving at the Resolution Copper Mine, Arizona: Report to
Arizona Mining Reform Coalition, 17 p. Available online at: https://
Emerman, S.H., 2019c. Evaluation of the Maximum Design Earthquake for
the Tailings Storage Facilities for the Proposed Resolution Copper
Mine, Arizona: Report to Arizona Mining Reform Coalition, 14 p.
Available online at: https://azminingreform.org/new-reports-to-be-
E&MJ (Engineering and Mining Journal), 2014. Sinking America's deepest
shaft: Engineering and Mining Journal--April 2014--Features. Available
online at: https://www.e-mj.com/features/sinking-america-s-deepest-
FEMA (Federal Emergency Management Agency), 2005. Federal guidelines
for dam safety--Earthquake analyses and design of dams: FEMA-65, 75 p.
Available online at: https://www.ferc.gov/industries/hydropower/safety/
Klohn Crippen Berger, 2017. Study of tailings management technologies:
Report to Mine Environment Neutral Drainage (MEND) Program, MEND Report
2.50.1, 164 p. Available online at: http://mend-nedem.org/wp-content/
Koppelaar, R.H.E.M. and H. Koppelaar, 2016. The ore grade and depth
influence on copper energy inputs: Biophysical Economics and Resource
Quality, v. 1. Available online at: https://link.springer.com/article/
Larrauri, P.C. and Lall, U., 2018. Tailings dams failures--Updated
statistical model for discharge volume and runout: Environments, v. 5.
Available online at: doi: 10.3390/environments5020028.
Laubscher, D., 2000. A practical manual on block caving: Report to the
Internal Caving Study (1997-2000), 525 p. Available online at: https://
Northey, S., N. Haque, and G. Mudd, 2013. Using sustainability
reporting to assess the environmental footprint of copper mining:
Journal of Cleaner Production, v. 40, pp. 118-128.
Phillips, M., 2016. Inside the billion-dollar dig to America's biggest
copper deposit: Bloomberg Businessweek, March 4, 2016. Available online
Resolution Copper Mining, 2014a. General plan of operations, vol. 1,
337 p. Available online at: http://www.resolutionmineeis.us/sites/
Resolution Copper Mining, 2014b. General plan of operations, vol. 2, 97
p. Available online at: http://www.resolutionmineeis.us/sites/default/
Resolution Copper Mining, 2014c. General plan of operations, vol. 3,
1,961 p. Available online at: http://www.resolutionmineeis.us/sites/
Salt River Project, 2019. Facts about SRP. Available online at: https:/
Singh, M.M., 2010. Water consumption at copper mines in Arizona: State
of Arizona, Department of Mines & Mineral Resources, Special Report 29,
18 p. Available at: http://repository.azgs.az.gov/sites/default/files/
SWCA Environmental Consultants, 2018. Final range of alternatives for
detailed analysis in draft EIS: Report to U.S. Forest Service, 19 p.
Tetra Tech, Inc. and R Squared, Inc., 2006. Final geotechnical
assessment, report on sinkhole development at the Troy Mine and
implications for the proposed Rock Creek Mine, Lincoln and Sanders
Counties, Montana: Technical Report, U.S. Department of Agriculture,
Forest Service Region 1, 116 p.
Woo, K.-S., E. Eberhardt, D. Elmo, and D. Stead, 2013. Empirical
investigation and characterization of surface subsidence related to
block cave mining: International Journal of Rock Mechanics & Mining
Sciences, v. 61, pp. 31-42. Available online at: https: / /
www.eoas.ubc.ca / personal / erik / e-papers / 13EE_IJRMMS-Empirical
USDA (United States Department of Agriculture), 2019. Draft
Environmental Impact Statement--Resolution Copper Project and Land
Exchange: U.S. Forest Service--Tonto National Forest, 1369. Available
online at: https://www.resolutionmineeis.us/documents/draft-eis.
Valencia, A., 2019. Ecuador alista reglas mas estrictas para relaves
con el fin de evitar desastres ambientales (Ecuador sets stricter rules
for tailings to avoid environmental disasters): Infobae, November 26,
Zhang, M. and T. Daly, 2019. China tightens rules on tailings dam
safety: Reuters, December 19, 2019.
Mr. Gallego. Thank you for your testimony.
The Chair now recognizes Dr. James Wells, a registered
geologist with nearly 30 years of experience and the Chief
Operating Officer for L. Everett & Associates.
STATEMENT OF DR. JAMES WELLS, CHIEF OPERATING OFFICER, L.
EVERETT & ASSOCIATES, SANTA BARBARA, CALIFORNIA
Dr. Wells. Good morning, and thank you for inviting me to
testify today. My name is Jim Wells. I have a Ph.D. in geology,
and I have been a practicing environmental hydrogeologist for
nearly 30 years. For the last 7 years, I have advised the San
Carlos Apache Tribe on environmental and water resource
matters. At the invitation of the U.S. Forest Service, I served
on the Groundwater Working Group which advised Tonto National
Forest on its preparation of the draft EIS.
The working group consisted of Forest Service and
Resolution Copper personnel as well as professionals from U.S.
EPA and Arizona state agencies. The scale of this project is
hard to fathom. As shown on this slide, Resolution's own
assessment acknowledges that groundwater will be depleted over
an area covering about 300 square miles. It is not clear how
long it will take for these aquifers to recover after the mine
closes. It is not in the DEIS, but Resolution once estimated
that it would probably take about a thousand years.
Another very long-term impact relates to drying of springs
and creeks from the permanent alteration of aquifers due to the
subsidence crater. The DEIS acknowledges that many springs,
most of which are identified as sacred, would be impacted by
The Forest Service looked 200 years into the future for
spring impacts even though, because of the scale of this
project, they knew these impacts will not have reached their
peak in some areas. The Forest Service discounted and did not
disclose the worst impacts that are predicted to occur decades
and even centuries later.
Resolution says it will use about 775,000 acre-feet of
water over the life of the mine, of which 70 percent will be
pumped from a network of new extraction wells in the East Salt
River Valley. That is 15 miles west of the mine site. This is
equivalent to 250 billion gallons of water. That is enough
water to supply a city of 140,000 people. This is a vast new
water demand for an area of the Southwest that is already
experiencing water shortages.
The draft EIS acknowledges that this amount of water
``could be greater than the estimated amount of physically
available groundwater,'' which is a pretty profound admission
for an EIS. Every colored dot on this slide is a municipal
well, so you can see there are already a lot of straws drawing
water out of this basin. Phoenix, Scottsdale, Tempe, Mesa,
Gilbert, Chandler, Apache Junction, and Superior--they all rely
on water from the very same groundwater basin. And study after
study from the Arizona Department of Water Resources and others
tell us that there is simply not enough water to go around.
Resolution chose to employ block-cave mining, thus ensuring
creation of a 1.8 mile-wide subsidence crater, because that is
the cheapest way to mine this deep ore body. A consequence of
this mining method is that reclamation and restoration is
simply not possible. These are forever impacts.
The subsidence crater may or may not extend into the Apache
Leap Special Management Area. At minimum, we do know it will
creep up the eastern slope of Apache Leap and profoundly
degrade the quality of this theoretically protected place. In
75 years, if we could all stand together on the crest of Apache
Leap instead of the world-class view across Oak Flat, we would
see a massive pit of collapsed rock just a couple hundred
meters away devoid of life and gradually filling with toxic
As the Chairman mentioned in his opening remarks, imagine
standing on the stairs of the U.S. Capitol and, as shown on
this slide, seeing nothing but a thousand-foot-deep rocky pit
swallowing not only the Smithsonian museums and the Washington
Monument but extending all the way to the Lincoln Memorial. I
am pretty sure if there was a lot of copper under the Mall, we
wouldn't be considering building a mine there.
In summary, this project has profound environmental
impacts, many of which cannot be mitigated. And the draft EIS
does not inform the public on the full scope of these problems.
[The prepared statement of Dr. Wells follows:]
Prepared Statement of James Wells, PhD, Environmental Geologist, L.
Everett & Associates, Environmental Consultants
I would like to thank Chairman Grijalva, Chairman Gallego, and
members of the House Subcommittee for Indigenous Peoples of the United
States for inviting me to testify at this hearing about the proposed
Resolution Copper Mine. I am a Registered Geologist and I have been a
practicing environmental geologist for nearly 30 years. My Bachelor's
Degree is from Dartmouth College and my Masters' and PhD degrees are
from the University of Washington in Seattle, all in Geological
Sciences. For the last 7 years, I have advised the San Carlos Apache
Tribe on environmental and water resource matters related to the
proposed Resolution Copper Mine, as well as other matters.
At the invitation of the U.S. Forest Service, I served on the
Groundwater Modeling Workgroup which advised Tonto National Forest on
its preparation of the Draft Environmental Impact Statement (EIS),
using complex groundwater modeling methods to predict water and
ecosystem impacts from the proposed mine. The working group consisted
of Forest Service and Resolution Copper personnel, as well as
professionals from stakeholder agencies such as U.S. EPA, U.S.
Geological Survey, Arizona Game and Fish, and Arizona Department of
Environmental Quality. Also, at the invitation of Tonto National
Forest, I am currently a member of the Resolution Copper Mine Water
Resources Working Group which is advising the Forest Service on its
efforts to respond to public comments on the Draft EIS. For context, of
roughly 30,000 comments submitted to the Forest Service on the Draft
EIS during the public comment period, approximately 20 percent of the
substantive comments related to water resources or water quality,
demonstrating the public's deep concern about this issue.
The Draft EIS prepared by Tonto National Forest identifies a number
of profound environmental impacts from this project that cannot be
mitigated. The scale of this project is hard to fathom and
unfortunately the Forest Service fell short of its obligation under
CEQA rules to take a hard look and ensure scientific integrity in its
evaluation of these environmental impacts.
inadequate evaluation of cumulative impacts on water resources in a
region already experiencing shortages
Once mining commences, the formation of a subsidence crater becomes
inevitable and unstoppable. Even Resolution Copper cannot stop this
process once it has begun. Further, once the 1.8-mile wide subsidence
crater forms, the Apache Leap Tuff Aquifer will be altered forever,
irreversibly and permanently altering the region's water resources.
This is the very definition of an irreparable harm. As stated in the
Draft EIS, ``The deep groundwater system is being and would continue to
be actively dewatered, and once block-caving begins the Apache Leap
Tuff would begin to dewater as well.'' \1\
\1\ Draft EIS, pp. 296-299.
The Draft EIS analysis of past, present and reasonably foreseeable
future regional water impacts is inadequate, even though the Forest
Service acknowledges that ``groundwater demand is substantial and
growing'' and ``total demand on the groundwater resources in the East
Salt River Valley is substantial and could be greater than the
estimated amount of physically available groundwater'' (DEIS, p. 342).
The DEIS does not take a realistic look at the consequences of
Resolution's plan to pump 550,000 acre-feet of water (as cited in DEIS
Table 2.2-1) from the aquifer in the East Salt River Valley.
There is disagreement about the accuracy of Resolution's water use
predictions, but even if we take Resolution at its word, it will use
about 775,000 acre-feet of water over the life of the mine, of which 70
percent will be pumped from a large network of new extraction wells in
the East Salt River Valley. 775,000 acre-feet equals 250 billion
gallons of water. The mine will consume enough water to supply a city
of 140,000 people every year for 50 years. This is a vast new water
demand for an area of the Southwest that is already experiencing water
The East Salt River Valley is part of the Phoenix Active Management
Area. There are already lots of straws drawing water out of this basin.
Phoenix, Scottsdale, Tempe, Mesa, Gilbert, Chandler, Apache Junction
and other towns rely on groundwater from the very same basin that
Resolution will be pumping from. In its latest study, the Arizona
Department of Water Resources predicted demand to exceed supply into
the foreseeable future for this basin and also predicted irreversible
loss of aquifer capacity due to overpumping.\2\ In an October 2019
study of the adjacent Pinal Active Management Area, Arizona DWR finds a
future unmet demand of 8.1 million acre-feet.\3\ There is simply not
enough water to go around. By green-lighting this mine, we are
embarking on an uncontrolled experiment on social priorities pitting
Arizona's agricultural, municipal and tribal interests against those of
a multinational mining company and the mining company is winning.
\2\ Arizona Department of Water Resources, 2010, Modeling Report
#22, A Salt River Valley Groundwater Flow Model Application. 100-Year
Predictive Scenarios Used for the Determination of Physical
Availability in the Phoenix Active Management Area.
\3\ Arizona Department of Water Resources, 2019 Pinal Model and
100-Year Assured Water Supply Projection Technical Memorandum.
Tens of thousands of people in Pinal County rely on groundwater for
their water supply and already, private wells are drying up.\4\ As
shown on Figure 1, the Forest Service's own research shows that Arizona
has experienced moisture deficits even when averaged over the last 100
\4\ ABC15 News, Private Wells Running Dry in Pinal County, Oct. 24,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 1. USDA 100-year moisture index, showing much of Arizona
has a moisture deficit, even when averaged over 100 years. Source,
USDA, 2012, Forest Health Monitoring: National Status, Trends and
Colorado and other parts of the desert Southwest remain in an
almost perpetual drought. Figure 2 is the Interagency Drought Monitor
map showing long-term and short-term drought conditions in and around
the project area and across much of the Colorado River Basin. A 2017
Report to Congress noted that the Colorado River (source of critical
water supplies to Arizona via the Central Arizona Project or ``CAP'')
has experienced lower-than-normal flows for the past 16 years, with
some of the lowest annual flows in 900 years. The Report to Congress
also noted that recent studies on the effects of climate change suggest
that ``a transition to a more arid average climate in the American
West'' may be under way. Likely consequences of climate change include
higher temperatures in the West, higher evapotranspiration, reduced
precipitation, and decreased spring runoff.\5\
\5\ Congressional Research Office, November 9, 2017, Drought in the
United States: Causes and Current Understanding, pp. 14-15.
The DEIS fails to evaluate ``reasonably foreseeable future''
Colorado River shortages and cuts, as well as the events that will be
triggered under the Drought Contingency Plan once shortages occur. It
also fails to look at the project's impact on regional water resources
when combined with these shortages.
Resolution Copper Mine will obviously require a vast amount of
water in a region of the country that is already experiencing water
shortages. Arizona water law grants exceptional leeway to mines, which
are essentially unregulated water users. As such, Resolution Copper may
be entitled to develop a virtually unlimited number of wells and pump
an unlimited amount of water from the East Salt River Valley. The
Forest Service seems to have (incorrectly) concluded that because of
this water right, it is relieved of considering impacts that would
arise from the exercising of this right. This approach is not
sufficient under NEPA and does not satisfy the requirement under NEPA
to take a ``hard look'' at environmental impacts.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 2. U.S. Drought Monitor Map, accessed on 12/6/2019.
Cumulative impacts are defined as ``the impact on the environment
which results from the incremental impact of the action when added to
other past, present and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person undertakes
such actions.'' \6\ One of the greatest contributions the Forest
Service could have made to this process--but did not--would have been
to conduct a thorough analysis on cumulative impacts of Resolution's
plan to pump 180 billion gallons of water from the aquifer in the East
Salt River Valley.
\6\ 40 CFR Sec. 1508.7.
inadequacy and unreliability of groundwater models
40 CFR Sec. 1502.24 requires that agencies ensure scientific
integrity of analyses in environmental impact statements. This means
that scientific analyses must be reliable. As noted in the Draft EIS,
``The Groundwater Modeling Workgroup recognized that a
fundamental limitation of the model--of any model--is the
unreliability of predictions far in the future, and the
workgroup was tasked with determining a time frame that would
be reasonable to assess.'' \7\
\7\ Draft EIS, p. 300, emphasis added.
The Forest Service subsequently ``determined that results could be
reasonably assessed up to 200 years into the future.'' \8\ This is a
problem because some hydrogeological impacts not only persist, but
actually get worse in time frames far beyond 200 years.
\8\ Draft EIS, p. 300.
The groundwater model was actually run for 1,000 years into the
future (DEIS, p. 296) although only the first 200 years are reported
quantitatively in the DEIS. This long-term analysis documented that in
some areas around the mine, groundwater levels will continue to decline
for many hundreds of years, thus potential impacts to Groundwater-
Dependent Ecosystems (GDEs) will only increase beyond the 200-year cut-
off for analysis. For example, the 1,000-year hydrograph produced by
Resolution's modeling consultant for Hidden Spring predicts a
continuing decline in groundwater levels for almost 800 years.\9\ That
impacts continue (and worsen) over such vast time frames is a testament
to how large and disruptive this project truly is and how environmental
impacts from this project should be measured on a geologic time scale.
By limiting the period of analysis, the Forest Service discounted (and
did not disclose) the worst impacts that are predicted to occur decades
and even centuries later.
\9\ Groundwater Working Group Meeting Notes, Meeting #8 held on May
The Forest Service also acknowledges (see quotation above) that the
best scientific tool available (three-dimensional groundwater modeling)
is not up to the task of analyzing such impacts. The Forest Service did
not meet its obligation under 40 CFR Sec. 1502.24 because it did not
maintain scientific integrity in analyzing hydrogeological impacts
beyond 200 years, even though such impacts are certain and significant.
The limitations and unreliability of the groundwater model are
simply the most recent chapter in a long saga of Resolution falsely
claiming that it understands the hydrogeology of the project area well
enough to assess impacts due to mining. I acknowledge that Resolution
has conducted substantial investigations into the hydrogeology of the
project area. However, the Forest Service failed to recognize that the
knowledge base was still inadequate for the purposes of the DEIS.
The hydrogeology of the project area is extremely complex, with
multiple aquifers, multiple faults and variable rock types. When
combined with a proposed project of such immense scale, it is a
significant challenge to conduct a groundwater impact analysis and the
Forest Service has not met this challenge. Starting at least as early
as 2016, Resolution's consultants assured the Forest Service scientists
and others that the West Boundary Fault, Concentrator Fault and other
faults would limit the western aerial extent of groundwater drawdown
(under Superior and farther west) from mine dewatering at Shafts 9 and
10. Resolution's own computer model later contradicted this conclusion,
instead showing nearly 10 feet of drawdown as far west as the Boyce
Thompson Arboretum (see Figure 3 showing substantial drawdown beyond
the boundary faults surrounding the mine site). In addition,
Resolution's hydrogeological studies failed to predict the inflow of
600 gallons per minute of hydrothermal groundwater (170+ F) that was
encountered when sinking Shaft 10.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 3. Map showing predicted groundwater drawdown from mine
dewatering and from the Desert Wellfield. Sources: Base Map: DEIS,
Figure ES-2; Desert Wellfield drawdown contours redrawn from DEIS,
Figure 3.7.1-2 (Desert Wellfield modeling analysis area and maximum
modeled pumping impacts); Mine model contours redrawn from WSP, October
31, 2018, Memo: Resolution Copper Groundwater Flow Model--Predictive
Results, Figure 5 (Regional Groundwater Model Predicted Drawdown-
Proposed Action Post Closure (Year 200); Faults are redrawn from WSP,
February 2019, Resolution Copper Groundwater Flow Report, Figure 2.1
(Regional Geology Map).
Resolution's own assessment acknowledges that groundwater will be
depleted by at least 10 feet (and in some places, more than 1,000 feet)
over an area covering about 300 square miles. As shown on this map,
this is a consequence of dewatering at the mine site as well as massive
amounts of pumping that will occur in the East Salt River Valley, about
15 miles west of the mine. No one knows how long it will take for the
aquifers to recover after the mine closes, but Resolution once
estimated that it would take about 1,000 years.
inadequate analysis of impacts on groundwater-dependent ecosystems
In evaluating this project, the Forest Service has violated its own
groundwater policy for Tonto National Forest. The Draft EIS
acknowledges that ``Between 14 and 16 GDEs, mostly sacred springs,
would be anticipated to be impacted by dewatering.'' Use of groundwater
that impacts springs and streams is contrary to Tonto National Forest's
``Groundwater shall be managed for the long-term protection and
enhancement of the Forest's streams, springs and seeps, and
associated riparian and aquatic ecosystems. Development and use
of groundwater for consumptive purposes shall be permitted only
if it can be demonstrated that such proposals will adequately
protect Forest resources.'' \10\
\10\ Martin and Loomis, Keeping Our Streams Flowing: Tonto National
Forest Groundwater Policy, in: Furniss, Clifton and Ronnenberg, eds.,
2007, Advancing the Fundamental Sciences: Proceedings of the Forest
Service National Earth Science Conference, October 2004, PNW-GTR-689,
USDA, Forest Service, Northwest Research Station.
One of the most important expectations of the groundwater modeling
effort was to assist the Forest Service in evaluating future impacts to
springs and perennial streams that support groundwater-dependent
ecosystems (GDEs).\11\ The computer model used to evaluate this issue
does not quantitatively simulate groundwater-surface water
interactions: ``Changes in stream flow cannot be evaluated based on the
groundwater model.'' \12\ Instead, it was decided that a finding of
hydrogeological ``impact'' would only be identified if the model
predicted at least a 10-foot drop in the groundwater elevation in the
immediate vicinity of a GDE. As stated in the Draft EIS,
\11\ BGC Environmental, November 2018, Review of Numerical
Groundwater Model Construction and Approach, Section 1.1, ``Issues to
be Addressed by the Groundwater Model''.
\12\ BGC Environmental, November 2018, Review of Numerical
Groundwater Model Construction and Approach, Section 4.9.2.
``. . . the Groundwater Modeling Workgroup determined that to
properly reflect the level of uncertainty inherent in the
modeling effort, results less than 10 feet should not be
disclosed or relied upon, as these results are beyond the
ability of the model to predict.'' \13\
\13\ Draft EIS, p. 301.
In short, the Forest Service has acknowledged that its scientific
methodology (groundwater modeling) has a limit of precision of plus or
minus 10 feet. The Working Group concluded that drawdowns of less than
10 feet could still have an impact on GDEs:
``The Groundwater Modeling Workgroup recognized that while the
model may not be reliable for results less than 10 feet in
magnitude, changes in aquifer water level much less than 10
feet still could have meaningful effects on GDEs, even leading
to complete drying.'' \14\
\14\ Draft EIS, p. 301.
However, due to the limitation of the model, in places where the
model predicts drawdown greater than zero but less than 10 feet, the
Forest Service assumed (without proof) that there are no impacts: ``to
properly reflect the level of uncertainty inherent in the modeling
effort, results less than 10 feet should not be disclosed or relied
upon'' (Draft EIS, p. 301). The Forest Service did not scientifically
conclude that 10 feet or more of groundwater drawdown is needed to
cause an impact on GDEs, this was just an arbitrary number based on
limitations of the method of analysis, not some scientific principle.
In conclusion, the Forest Service chose a methodology that is
incapable of thoroughly analyzing impacts of mine dewatering and the
collapse crater on GDEs. In this instance, the Forest Service is not
meeting its obligation under 40 CFR Sec. 1502.24, because it is relying
on a scientific method (groundwater modeling) that is not capable of
predicting significant hydrogeological impacts for this complex
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
inadequate consideration of alternatives to block cave mining as a
way to avoid permanent water resource impacts
Once the 1.8-mile-wide subsidence crater forms, the Apache Leap
Tuff Aquifer will be altered forever. As stated in the Draft EIS, ``The
deep groundwater system is being and would continue to be actively
dewatered, and once block-caving begins the Apache Leap Tuff would
begin to dewater as well.'' \15\ The Apache Leap Tuff Aquifer is a
critical source of water for springs and creeks, many of them sacred.
This permanent impact would not occur if alternative underground mining
methods were employed, but the Forest Service did not conduct an
adequate analysis of alternative mining methods (as discussed elsewhere
in these comments) largely because the Forest Service accepted
Resolution's assertion that any method other than block cave mining
would be too expensive. The Draft EIS disclosed a number of profound
impacts due to the collapse crater that cannot be mitigated, including
to water resources. By failing to conduct an acceptable and competent
evaluation of project alternatives that could avoid the impacts caused
by the collapse zone, the Forest Service is allowing one factor (cost
of mining: i.e., Resolution's profitability) to outweigh all
environmental and social factors combined.
\15\ Draft EIS pp. 296-299.
mitigation of impacts to groundwater dependent ecosystems
The Draft EIS concludes that the Resolution Copper Mine project
will or is likely to deplete water supplies and harm or destroy the
streams, springs, seeps and other water features in Oak Flat, Ga'an
Canyon (Devil's Canyon), Mineral Creek and Queen Creek: ``Between 14
and 16 GDEs, mostly sacred springs, would be anticipated to be impacted
by dewatering. Although mitigation would replace water, impacts would
remain to the natural setting of these places.'' \16\ The proposed
mitigation for GDEs is inadequate. Mitigation plans are outlined in an
April 2019 report.\17\ This report calls for replacing water flows in
springs and creeks by pumping water from nearby wells (i.e., tapping
groundwater from deeper in the aquifer), storing water in tanks and
piping the water to the creek or stream or by constructing various
water-collecting devices such as so-called ``guzzlers,'' surface water
capture systems or even trucking water in from alternative sources.
Replacing a natural system with a manufactured facsimile of the system
is not the intention of mitigation under NEPA. Just as it would not be
permissible to replace the real Half Dome with a very large photograph
of Half Dome, it is not permissible to replace lost GDEs with artful
but artificial copies of natural systems. It was not the intention of
NEPA to replace nature with Disney-like imitations of nature.
\16\ Draft EIS p. 123.
\17\ Montgomery & Associates, 2019, ``Monitoring and Mitigation
Plan for Groundwater Dependent Ecosystems and Water Wells.''
The monitoring plan for GDEs is also inadequate because its
discussion of triggers (i.e., occurrences or observations that would
trigger mitigation activities) is vague and incomplete. The Montgomery
Report \18\ reveals that Resolution has built in (and the Forest
Service has bought into) any number of ways to avoid actually
implementing mitigation measures for GDEs. In particular, the Plan
explains that Resolution will somehow differentiate the impacts from
its dewatering from other variables such as ``changes in weather and/or
climate, impacts to the regional and/or local groundwater system from
other human causes, landscape changes such as landslides and fires,
natural succession of the GDE into a new presentation such as an
increase in phreatophytic plants coincident with a reduction in spring
flow rates, or other reasons not included in this document.'' Other
than noting that Resolution will employ ``multiple lines of evidence''
there is no quantitative or qualitative discussion of how Resolution
will accomplish this difficult task. Considering that all of the GDEs
covered by the monitoring plan have already been identified as likely
to be severely impacted by mine dewatering, this is a problematic
situation and is inadequate under NEPA.
\18\ Montgomery & Associates, 2019, ``Monitoring and Mitigation
Plan for Groundwater Dependent Ecosystems and Water Wells.''
Appendix J of the Draft EIS specifies that the monitoring and
mitigation plan is not intended to address water sources associated
with perched shallow groundwater in alluvium or fractures. Including
shallow fracture flow in this statement incorrectly excludes important
and probably inevitable impacts directly related to mining. Fracture
flow \19\ is likely the dominant groundwater flow mechanism in the
Apache Leap Tuff and this groundwater unit is the source of water
discharges that support riparian zones in Ga'an Canyon (Devil's
Canyon), Mineral Creek and possibly Queen Creek. The groundwater system
in the Apache Leap Tuff will be profoundly and irrevocably altered by
the formation of the collapse crater. The Draft EIS is incorrect in
excluding shallow fracture flow from monitoring and mitigation
\19\ Groundwater flow is generally thought of as flow through
porous media, that is, through the pore spaces between the grains that
make up sediments and sedimentary rocks. This is considered ``primary
porosity.'' Fractures are a form of secondary porosity, created due to
tectonic forces or other stresses on the rock. Large fractures can
increase rates of groundwater flow very substantially compared to the
generally slow flow through porous media, thus can be very important in
mountainous regions with significant fracturing.
water quality impacts--acid rock drainage
As noted in the Draft EIS, ``The deposit is associated with
hydrothermal alteration and includes a strong pyrite ``halo'' in the
upper areas of the deposit, containing up to 14 percent pyrite. This
mineralization has ramifications for water quality, as sulfide-bearing
minerals such as pyrite have the potential to interact with oxygen and
cause water quality problems (acid rock drainage)''.\20\ Much of the
mineralized halo (i.e., rocks with abundant sulfide minerals but a
lower grade of copper) will not be mined out, rather it will become a
permanent part of the collapse zone.
\20\ Draft EIS p. 140.
The Draft EIS makes the unsupported assumption that the
mineralized, fractured rock in the collapse zone will not be in contact
with oxygen, thus will not form acid rock drainage. This is a highly
optimistic conclusion that defies common sense. As the collapse zone
forms, the rock will become fractured (thus increasing its hydraulic
conductivity many orders of magnitude) and largely dewatered. For the
purposes of groundwater modeling, Resolution assumes that the hydraulic
conductivity \21\ of rock in the cave zone will increase by as much as
a factor of a million: ``Maximum hydraulic conductivity values were
altered by a multiplier of 1E+6 or to a hydraulic conductivity of 100
ft/day, whichever occurs first . . . The maximum hydraulic conductivity
value of 100 ft/day was selected because it is much higher than the
natural, un-altered bedrock, but higher values caused the model to
become unstable.'' \22\ This statement highlights another deficiency of
the groundwater model: hydraulic conductivity of rock in the collapse
zone was arbitrarily limited to 100 ft/day because the model would
crash if higher (i.e., more realistic) values were used.
\21\ Hydraulic conductivity is a measure of the ease by which
groundwater flows through an aquifer. This, in turn, affects the
groundwater velocity through the aquifer. Solid rock has a very low
hydraulic conductivity; sandstone has a higher hydraulic conductivity
and very coarse grained sediments like gravels have even higher
\22\ WSP, February 2019, Resolution Copper Groundwater Flow Report,
Atmospheric air will easily penetrate the fracture zone, supplying
oxygen into a subsurface environment that has probably been devoid of
oxygen for thousands if not millions of years. This assumption (no
oxygen thus no acid-generating reactions in to collapse zone) is likely
incorrect and likely greatly understates the impacts from acid rock
drainage within the mine and in ore stockpiles.
water quality impacts--tailings facility
The scale of this project is hard to grasp, but the volume of
tailings produced by Resolution Copper would fill the Rose Bowl to its
brim, not once but nearly 1,800 times. This vast volume of waste
material will permanently disturb 16,000 acres of land of which nearly
8,000 acres is Arizona State Land. The principal accomplishment of the
Draft EIS seems to be to propose a new location for the mine's 1.37
billion tons of tailings, but the Draft EIS is inadequate in its
assessment of impacts at this new location to surface water and
groundwater quality due to seepage from the preferred tailings storage
facility. Water quality impacts from the tailings is one of the most
profound and concerning environmental issues for a mine of this size,
yet there is virtually no defensible scientific analysis of this issue
in the Draft EIS. Indeed, except for the Near West site, there is no
true, data-supported, site-specific analysis of potential impacts to
surface water and groundwater quality at any of the alternative
impacts to apache leap special management area
Resolution chose to employ block cave mining (thus ensuring
creation of a 1.8-mile wide subsidence crater) because that's the
cheapest way to mine this deep ore body. A consequence of this mining
method is that reclamation or restoration is simply impossible: maybe a
sturdy fence and maybe some ``no trespassing'' signs.
There is a high degree of uncertainty in Resolution's subsidence
predictions but we've been assured that the subsidence crater will not
extend into the Apache Leap Special Management Area. True or not, we do
know it will creep up the eastern slope of Apache Leap and profoundly
degrade the quality of this theoretically protected place. In 75 years,
if we could stand together on the crest of Apache Leap, instead of the
world-class view across Oak Flat, we would see a massive pit of
collapsed rock, just a couple hundred meters away, devoid of life &
gradually filling with toxic mine water. Imagine standing on the stairs
of the U.S. Capitol and seeing nothing but a 1,000-foot deep rocky pit,
starting at the Capitol reflecting pool, swallowing not only the
Smithsonian Museums and the Washington Monument, but extending all the
way to the Lincoln Memorial. That's how immense this subsidence crater
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
This mining project has long-term consequences to the groundwater
resources in Arizona as a whole and the Phoenix Active Management Area,
in particular: in some cases, permanent consequences. Once mining
commences, the formation of a subsidence crater becomes inevitable and
unstoppable. The Draft EIS acknowledges that total demand for water in
the East Salt River Valley is growing and could be greater than the
available supply.\23\ And yet, the Draft EIS does not take a realistic
look at the consequences of Resolution's plan to pump 180 billion
gallons of groundwater from the Desert Wellfield: a network of new
extraction wells proposed for the East Salt River Valley.
\23\ Draft EIS, p. 342.
Considering the effects of ongoing drought conditions and likely
reductions in deliveries of Colorado River water to Arizona via the
CAP, it is nearly certain that the new demand from Resolution's pumping
of groundwater from the East Salt River Valley will lead to water
shortages among the many users of this groundwater basin. Even more
certain is the irreversibility of Resolution Copper's impacts to the
Apache Leap Tuff Aquifer which will be altered forever: permanently
altering the region's water resources and threatening permanent and
unmitigable impacts to local streams and springs, many of which are
sacred to Arizona Tribes.
Mr. Gallego. The Chair now recognizes Mr. Roy Chavez, the
former mayor of the town of Superior and the Chair of the
Concerned Citizens and Retired Miners Coalition.
STATEMENT OF ROY CHAVEZ, CHAIR, CONCERNED CITIZENS AND RETIRED
MINERS COALITION, SUPERIOR, ARIZONA
Mr. Chavez. Thank you very much. Excuse me, I need my
glasses now. I have been on this for so long, my eyes aren't
good anymore. Good morning. My name is Roy Chavez, and it is an
honor to testify on this important issue today. I am Chair of
the Concerned Citizens and Retired Miners Coalition, a non-
profit grassroots volunteer group of citizens whose members
include local residents, former miners, and friends of the town
The coalition is not opposed to mining. In fact, we
strongly support responsible mining practices in and around our
community. I am a lifelong third-generation resident of
Superior. I am an ASU graduate, and I have served the community
of Superior in various capacities as a council member, as
mayor, and as town manager. I have also been a small business
owner for the past 30 years, and I have worked for several
different mining companies, including Hecla Mining, Kennecott
Copper, Magma Copper, and BHP.
I have experience in open-pit mining, smelting, underground
mining, construction, development, and production. I will be
speaking today specifically on the proposed Resolution Copper
mining project in Superior. The Superior Arizona Magma Copper
Mine operated from the early 1900s until their first closure in
1982. Approximately 1,400 employees were laid off after the
mine closed then.
When the mine reopened in 1989, it employed less than 400
people, almost a two-thirds reduction in the labor force.
Technological changes, including the use of underground
loaders, meant that less manpower was needed to achieve the
same results. The mine ultimately shuttered again in 1996.
After the first mine closure, Superior's population,
business revenues, and general operating procedures were
greatly diminished. The boom-and-bust cycle of mining had left
the town in an unstable financial position. And we were left to
pick up the pieces. During the mid-1980s, Superior decided to
diversify the economy away from mining and looked to tourism,
senior living, and outdoor recreation to better enhance the
area and provide a sustainable source of revenue for the
To achieve this diversification, Superior had to
consolidate community service, cut taxes, and undergo a
wholesale of modernization to clean up the town and better
promote the community. As mayor, I was first approached by Rio
Tinto in 1998 about reopening the mine. They referenced a new
operation using a block caving mining method and discussed the
acquisition of over 3,500 acres of public lands managed by the
U.S. Forest Service above Apache Leap and Oak Flat. Initially,
I was encouraged by the prospect of the mine reopening and what
it could mean to the many folks who had lost their jobs after
However, recognizing the technology that was in place in
the late 1990s and the overall workforce diminishment, I was
very skeptical about the jobs that would actually materialize
in this new mine. Resolution was proposing block-cave mining
where historically a cut-and-fill method had been used in the
region. In a block-cave mine, ore is extracted from underneath.
Eventually the earth above the mining operation subsides,
leaving a massive crater and forever destroying the surface.
Block-cave mining is a technologically dependent operation
requiring far fewer laborers than traditional cut-and-fill
mining. The technology advances in today's mining industry,
combined with the block-cave method, means only a bare minimum
of jobs will be created. It would be no surprise if many of the
technical jobs that are available will be held by highly
trained individuals sitting at a computer in another state or
even another country controlling our robotic workforce
In order to remove the ore body from block caving,
Resolution plans to install 70 miles of underground track. The
ore is transported to the surface where it is processed to a
concentrate. The concentrate can be smelted and sold at that
point. The foreign mining conglomerate of Rio Tinto is majority
owner of Resolution Copper, a limited liability company. As
Chinalco, owned by the government of China, is the largest
shareholder of Rio Tinto, current mining plans call for
transporting the ore to China for final processing and sale.
Giving away American natural resources to a foreign
conglomerate so it can monetize our resources to enrich
shareholders while creating few jobs in an environmental
disaster is fleecing the American people. Ladies and gentlemen,
Superior and the surrounding communities have worked hard to
build a strong and sustainable future for our residents.
Resolution Copper's mine is a bad deal for local residents,
a bad deal for the environment, and a bad deal for the American
taxpayer. Here, if Congress doesn't act, then the government of
China wins and the Arizonans and other Americans lose. I urge
Congress to put America first and repeal this special-interest
land legislation. Thank you.
[The prepared statement of Mr. Chavez follows:]
Prepared Statement of Roy Chavez, Chair, Concerned Citizens and Retired
Miners Coalition, Superior, Arizona
THE IRREPARABLE ENVIRONMENTAL AND CULTURAL IMPACTS OF THE PROPOSED
RESOLUTION COPPER MINING OPERATIONS
The Concerned Citizens and Retired Miners Coalition is a non-
profit, grass roots, volunteer group of citizens whose members include
local residents, former miners and friends of the Town of Superior. The
Coalition is not opposed to mining, in fact, we strongly support
responsible mining practices in and around our community of Superior,
On behalf of the Concerned Citizens and Retired Miners Coalition, I
appreciate the opportunity to express our views about the irreparable
environmental and cultural impacts of the proposed Resolution Copper
Oak Flat and Devil's Canyon is recognized as one of the most
unique, scenic, popular and unspoiled areas in the state of Arizona. It
is easily accessible to millions of visitors from the Phoenix and
Tucson metropolitan areas within a short drive. However, it's cultural,
ecological and recreational aspects are being jeopardized by a proposed
underground mine that is certain to fail. The Tonto National Forest is
pushing through the environmental review of this project--feeling
mandated to do so by Section 3003 of the 2015 NDAA--and has written an
incomplete Draft Environmental Impact Statement (DEIS) based upon an
incomplete mining plan of operation provided by Resolution Copper
Mining. We believe that Congress should stop the project until
Resolution Copper Mining provides ALL of the missing information
regarding their plan of operation so that the Forest Service can
provide a comprehensive Environmental Impact Statement (EIS) that
addresses the long-term consequences/impacts to the environment and
community. We also believe that Congress must overturn the Oak Flat
land exchange because it is in the public interest to keep Oak Flat in
the public domain.
From a local perspective, this project began 20 years ago with a
projected outcome of a new mining operation sustaining a much-needed
economic base in Superior and the surrounding region. Throughout all
these years, many different messages and information have been proposed
by Resolution Copper Mining to local, county and state officials
regarding their mining plan of operation. Taken for face value, these
now appear to be ``pie in the sky'' as far as economic development and
a sustainable revenue base. Though many local people initially
supported the project, two decades later, many more people are
questioning the validity of this project and what it will really
bring--loss of public lands, jeopardizing our water quantity and
quality, toxic waste, air pollution with no ``real'' jobs.
We don't believe that the proposed block-cave method of mining will
create as many jobs as projected. It is general knowledge that the cut
and fill method creates far more jobs; and as shown at the peak of
production in the 60s and 70s at the Magma Mine, there were 1,400
employees as compared to 400 during the reopening in the 80s and 90s.
Additionally, the process of mining in the 21st century is very
technologically advanced and requires specialized training. Resolution
Copper Mining has not indicated that they will hire untrained, local
labor. In fact, today's activity on the project reflects an influx of
mining technicians from outside the community. We routinely see
vehicles with license plates from Utah, Colorado and Mexico. We are
seeing more and more articles regarding the development of robotic work
for future mining activities. These robotic systems are being tested
today in South American and Australian mining operations. It would be
no surprise if many of the technical jobs that are available will be
held by highly trained individuals sitting at a computer in another
state--or even another county--controlling our robotic workforce
Thanks to autonomous robotics technology, even as mining production
has increased, mining employment has decreased. Mining reform would
create clean-up jobs, funded by a reclamation fee and royalties that
cannot be outsourced. Montana's experience with mining reclamation
suggests that a dollar spent on mining clean-up creates more jobs than
a dollar spent on new mining.
As referenced in Bloomberg Financial, July 14, 2019, Rio Tinto,
Resolution Copper Mining's parent company, is actually considering
advancing the priority of a remote Western-Australia copper ore body
discovery where Rio now has as many as ``190 staff, about 12 drilling
rigs and is constructing a gravel airstrip'' above the Resolution
Project in Superior, Arizona.
Recent information from The ACCESS Fund (outdoor recreation and
monitoring agency) and reports from the Arizona Mining Association also
indicates that in Arizona's current economy, outdoor recreation
(fishing, camping, hiking, boating, rock climbing, birding, and other
forms of eco-tourism) provides over $12 billion annually in state
revenue while all mining in the state provides approximately $5
million. Recreation and tourism also generate many more jobs than
mining. Referencing this mine project, would we not be killing the
``goose that lays the golden egg''?
But, mining without reform destroys the land and pollutes the water
upon which recreation and tourism jobs rely.
Oak Flat is sacred to Indigenous people, including the Apache, and
is on the National Register of Historic Places (NRHP) as a traditional
cultural property. It is a world-class recreational area, attracting
climbers from all over the world, not to mention a place of biological
diversity. Several endangered species will be harmed by the mine,
including the Arizona hedgehog cactus, yellow-billed cuckoo and narrow-
headed garter snake.
The Oak Flat Campground was recognized by the Eisenhower
administration as an important recreational resource in 1955 under
Public Land Order 1229, as amended, and 760 acres of Oak Flat were
specifically placed off limits to future mining activity. The
Campground has tens of thousands of visitors each year who enjoy the
peace and beauty of this world-class natural resource and bring needed
tourist dollars into the surrounding areas of Superior and Globe. Gaan
(known as Devil's) Canyon and the waters of Queen Creek border the Oak
Flat area. These important surface waters represent two of the crown
jewels of Arizona's state trust lands, with some of the finest
remaining riparian habitat in the state.
The Land Exchange Law is the first United States law that gives a
Native American scared site on public land to foreign mining companies.
It benefits only two large foreign mining companies at the expense of
religious freedoms, Arizona's clean water, the environment, recreation
In support of the Resolution Project, the National Mining
Association/Department of Interior are currently trying to change the
National Historic Preservation Act beyond congressional authority
because they opposed the listing of Oak Flat on the National Registry
of Historic Places and now want to make certain that tribes and
historic preservation officers no longer have a say on historic
properties on Federal lands.
``Forgiveness before permission'' appears to be the train of
thought for this Project and many others. This is basically giving away
American taxpayer public resources to a foreign-owned operative for
free, which in essence is fleecing all U.S. citizens.
No one would deny that the state of Arizona is currently facing a
water dilemma (drought). For the past 20 years, southwest regional
water runoff has diminished dramatically. No area of the state of
Arizona is exempt from this fact. The Resolution Project has proposed
several different figures for its water use. These numbers have
fluctuated from as much as 60,000 acre-feet annually to as little as
18,000 acre-feet. Regardless of the amount, there is no guarantee that
this resource will be available--especially into the future--when
continued drought is projected. Communities within the mining region
and all people throughout the central corridor of Arizona are truly
concerned about how much water will be consumed and destroyed by this
mining Project. Let us not forget that mining is one of the most water-
intensive industries on Earth.
Superior and Oak Flat are in the Maricopa County Active Management
Area, so whatever water is used for mining will affect the East Valley
in addition to the local community. An in-depth analysis regarding the
impact of any potential mine of this magnitude at Oak Flat to the water
balance of the entire region should be conducted before this Project is
even considered by Congress.
Queen Creek directly feeds into the main water supply for the Town
of Superior (approximately 2,000 acre-feet annually). Block cave mining
extracts large masses of underground, stable earth which causes an
uncontrolled shift of the water course and alters that water course to
pull away from Queen Creek, depleting and disrupting the natural flow.
Serious consideration should be given to the following:
How much water will the mine project actually use
How will water pollution from the mining activities be
Why is the current Administration trying to fast-track the
mine at Oak Flat without an adequate environmental review
Why was the NEPA process conducted only after the Oak Flat
Why, if Resolution Copper has stated that the mine would
meet 25% of the U.S. demand for copper, is the processed
material all going to China
Why are certain elected officials so adamant in their
support for this un-American Project
Given the above and all other information regarding the negativity
of the proposed Resolution Copper mine and the long list of unanswered
questions, we urge the U.S. Congress to overturn the Oak Flat land
exchange referenced in Section 3003 in the 2015 NDAA and require the
U.S. Forest Service to write a new Environmental Impact Statement only
after all information is provided regarding the Resolution Copper
Thank you for your time and consideration.
Mr. Gallego. Thank you very much, Mr. Chavez.
I thank all the witnesses for their testimony, reminding
Members that Committee Rule 3(d) imposes a 5-minute limit on
questions. The Chairman will now recognize Members for any
questions they may wish to ask the witnesses. I will start by
recognizing myself for 5 minutes.
Dr. Wells, as you know, the Southeastern Arizona Land
Exchange requires an environmental review of the mining project
to be conducted. However, the legislation also mandates for the
land exchange to occur regardless of the findings of the
review. It is crazy. Can you explain how this reality has
affected the Environmental Impact Statement drafting process
for this project?
Dr. Wells. Yes, I can try to explain that. This is not a
normal EIS process as it was envisioned under NEPA. Under NEPA,
projects are meant to be given a hard look. The projects and
the environmental impacts from those projects are required to
be given a hard look in a scientifically defensible way.
I have worked with the Forest Service on the water
resources part of their draft EIS. And I believe there is
almost a sense of fatalism as a result of this streamlined
process that is just going through the motions to validate a
foregone conclusion. I think that also could explain why the
Forest Service didn't always take a critical look at
information provided to them by Resolution that ended up, in
many cases, in the draft EIS just sort of verbatim out of
Mr. Gallego. Thank you. In your testimony, you also mention
specifically that the DEIS fails to fully analyze the fact that
Resolution Copper has planned to pump 250 billion gallons of
water for its proposed mines. Can you explain what these
missing cumulative effects could be?
Dr. Wells. Sure, yes. I am happy to do that. I think that
is a really important question. In my view, one of the most
valuable contributions the Forest Service could have made in
the draft EIS or in the NEPA process would have been to take a
clear and thorough look at cumulative impacts.
Speakers in the first panel spoke movingly about their
understanding that the world and life is interconnected. And I
think, in many ways, we, in the world of modern science, aren't
very good at incorporating that knowledge.
One way that it can be incorporated, maybe imperfectly, is
this whole concept of cumulative impact analysis under the NEPA
process. Let's take water resources. We know that Resolution
Copper, if this project goes through, is going to use up a
whole lot of water. What about a situation in the future which
is increasingly likely that there will be a drought emergency
in the Colorado River basin? Arizona depends a lot on water
from the Colorado River, as do many other states, supplied
through the CAP or the Central Arizona Project. Once a drought
emergency is signified, which could happen any time now, those
supplies drop off, and we know exactly by how much. It is all
written down in the compact, but there is no analysis in the
draft EIS of what we are going to do in a situation in a couple
years when there are these vast new demands for water in
Arizona but even less water.
Mr. Gallego. Thank you, Doctor.
And last, Mr. Chavez, the DEIS statement states that the
panel-caving method was selected for Resolution Copper's mining
proposal and that other mining methods were considered but not
analyzed in detail. Appendix F states that other methods were
dismissed because of risk associated with surface disturbance
and ``higher operation costs.'' As a former miner, could you
please give us your views on the decision to approve panel
caving without analyzing other methods in full detail?
Mr. Chavez. Yes. The block-cave method historically, it
appeared, was never used. We were under a process called cut
and fill. And as an example of that, quickly, we would mine out
this particular structure here, this office, this building, the
hearing committee building, and we would process the material.
We would recover all the commodity metal, copper, gold, silver,
and molybdenum. That would take about 10 percent of this room.
The remaining 90 percent would be the toxic mine waste that is
being discussed at this point, making up the tailings.
In cut-and-fill operations, though, it is cutting and
filling. We would take approximately 80 percent of that waste
material, mix it with concrete, and pipe it back underground
and reintroduce it into the vacant ore body area and filling
this core. Once that would happen, we could mine the panel
here, the panel there, the one above, the one below. You
follow? It is like creating a box, a solid box.
Cut and fill is labor-intense. And when Rio Tinto mentions
block-cave mining, that is what they are doing worldwide for
the most part. And your No. 1 cost is labor in their opinion.
And they want to cut back on labor. In the block-cave method,
the extraction process is very high. They would not take this
building or office here. They take this entire building
structure, the whole block, two blocks, three blocks. And they
would void it. They would pull it out from below, transport it
out, do the same thing in processing, recover the commodity
money metals, and then create the waste product and place it on
the surface. One thing that is not really being mentioned is
that the land exchange is one issue where they want to make it
appear that the United States is recovering something for this.
We are getting something for the land exchange, but the
appraised value of the ore body has not even been discussed,
nor have the potential 12 square miles that will be utilized on
public Forest Service land to dump the waste forever. We are
not getting a penny. Just wanted to share the two differences.
Mr. Gallego. I appreciate it. Thank you, Mr. Chavez.
I now recognize Representative Haaland.
Ms. Haaland. Thank you, Chairman.
My first question is for Mr. Chavez, Mr. Mayor. As the
former mayor of the town of Superior and a lifelong resident,
do you feel that the DEIS adequately informs the local public
about these risks that you have been talking about associated
with this project?
Mr. Chavez. No. We have to remember now in the industry
what they are using worldwide is a social license to operate.
And within those boundaries, the Resolution Mine has created a
community working group which I happen to be a member of for 4
years now. Reluctantly, I am the only member on that 30-member
group that is in opposition to this project and I have been
from the very beginning.
The representatives on that group are members of
organizations and agencies that have received some type of
funding from the Resolution Mine for their organizations and
their functions. But the work group spins this information that
is now in the study, which was provided for scrutiny, a period
of 90 days, several thousand pages. So, this process has been
going on for over two decades, and yet here, just like today,
for them trying to cancel this or postpone it, now, when the
cards aren't on the table for them, they certainly turn on us
and want a review. So, I would share with you that not many
people have looked at that study in an appropriate manner. And
I think the longer this goes on, the more and more people
locally, regionally, are asking the question, ``What's going
on, what is this about?''
Ms. Haaland. Thank you. Do you believe that the Forest
Service seems to be expediting a flawed and limited
environmental review and, if so, why? And I don't have a whole
lot of time so if you----
Mr. Chavez. Thank you. They were given their marching
orders as defined in the special-interest legislation. They
formulated the support of an analysis of this project. And,
again, they are going to blame 1872, the U.S. Mining Law.
Ms. Haaland. Can you speak to the local opposition to
Resolution Copper's mining operation?
Mr. Chavez. I think by every day that goes by, as we said
years ago, the longer this takes, the truth will come out. And
they are believing now, or they are understanding now, that the
jobs and the impact is either going to be destructive or very
minimal in regards to the economy of the community.
Ms. Haaland. Well, thank you for standing for the truth.
Dr. Emerman, thank you for your testimony. I appreciate
that. Have you reviewed Tonto National Forest's Draft
Environmental Impact Statement for the Resolution Copper Mine
which was issued last August?
Dr. Emerman. Yes. First, I read the general plan of
operations very, very carefully, word for word, and did the
same thing with the DEIS.
Ms. Haaland. So, you have reviewed the 1,300-page document
in its entirety?
Dr. Emerman. Very carefully, yes.
Ms. Haaland. Your resume indicates that you hold a Ph.D.
and a Master's in Geophysics from Cornell and Princeton
University, respectively, and that you majored in mathematics
at Ohio State University. Based upon your extensive background
and your individual review of the EIS, would you consider it to
be complete and thorough?
Dr. Emerman. Well, the simple answer is no. What we expect
from a DEIS is it should be very thorough, consider a wide
range of environmental impacts, and justify its reasoning. And
it should be independent. Much of the DEIS simply repeats
information provided by Rio Tinto, especially the assumptions
from Rio Tinto, without investigation. There are many countries
in which there is no technical capacity at the governmental
level. And the EIS or its equivalent is simply written by the
mining company. We have a different set of laws in America.
Ms. Haaland. Right.
Dr. Emerman. This DEIS is not what I expect to see in
Ms. Haaland. Thank you. I still have another question. Do
you believe the citizens of Superior, Arizona and other nearby
communities like Pinal County should be concerned about water
scarcity if the Resolution Copper Mine moves forward? And
should other people across the state be concerned about the
availability of water resources should this project go through?
Dr. Emerman. Yes. Rio Tinto has said they will consume
15,700 acre-feet of water per year. That has never been
justified. There is no water budget for that. That is simply a
promise. If we would go by worldwide global mining industry
standards, it should be three times that. If we go by what is
typical in Arizona, it should be 10 times that. That is simply
due to the high evaporation rate in Arizona.
Even the Rosemont Mine, of course, hasn't opened. Based on
that prediction, this Resolution Copper Mine would use 40,000
acre-feet of water per year. So, actually, everything Dr. Wells
was talking about in terms of groundwater impacts, I would say
multiply that by three. So, yes, who is giving up water to
provide the water for this project? Thank you.
Ms. Haaland. Thank you, and thank you all so much for your
expert testimony. It seems to me that if you take 100 percent
of something and you only get 10 percent out of it and the
other 90 percent is waste, it doesn't seem like it is worth it
but thank you, Chairman. I yield.
Mr. Gallego. Thank you, Representative Haaland.
I now recognize Representative Garcia.
Mr. Garcia. Thank you, Chairman, and thank you to the three
witnesses of this panel.
Dr. Wells, in terms of the unprecedented amount of water
and to have a tailpipe this far and this close to the
community, is this a first, to your knowledge, in American
mining with these proportions and these practices being
Dr. Wells. Absolutely in terms of the scale of this
project. The scale of this project is so immense and
unprecedented any one of these methods that we are talking
about has been applied in one place or another but not in a
place that is so environmentally sensitive and not such a vast
scale. In some ways, one of the things that Dr. Emerman and I
are talking about is uncertainty.
In science, we always try to disclose how much uncertainty
there is in our calculations. And because of the scale of this
project, the DEIS does not disclose how much guesswork there is
on how bad these impacts might be, whether it be the stability
of the tailings dump or whether it be on the impacts to sacred
springs and streams or whether it be on the impacts to
neighbors' water supplies.
Mr. Garcia. And what will happen to the dam infrastructure
that will go unmaintained, as I think you alluded to?
Dr. Wells. These things are forever things. The mine will
come and go, geologically speaking, pretty quickly, only in 50
years. The tailings pile will be there forever. So, once
Resolution packs up and goes on to the next place, eventually
the tailings dam will be unmaintained. And I think, again, I am
a broken record when talking about uncertainty of these
scientific predictions. We can't say when that tailings dam
would fail, but we do know that someday it will.
Mr. Garcia. And, Mr. Chavez, what does the U.S. Government
get out of a project like this, to your knowledge?
Mr. Chavez. The primary factor under the mining strength
and lobby in Arizona throughout the Southwest is jobs,
Representative. And those jobs are the priority, I believe,
that I have seen politically. This giveaway, though, is--if
today's market of the industry is, by no means, in my opinion,
and many, many other people in the industry, and previously in
the industry is not going to provide these jobs that have been
We have heard from 300 jobs to now 6,000 jobs. Some of the
jobs are including people that are locally employed in the
school district, people at restaurants. But the reality is that
it is jobs. And the fact is that those jobs are diminishing.
One other thing to remind you is that, in Arizona right now,
our neighbors down the road in Ray and Hayden are in a strike
right now. The labor group is in a strike. And that is going to
continue for some time. They are trying to break the union. And
that answers something to jobs, I mean, really legitimately are
these companies really there to support the working force?
Mr. Garcia. So, am I to infer from that, that there is a
great cost here to the communities, to the environment, and
that whatever is here, it is shortsighted?
Mr. Chavez. I would definitely agree. If you listened to my
oral testimony, I mentioned that we were trying to diversify
because we couldn't do anything with the mine out. So, we had
to change things, and I had to shift gears. And part of that
was looking at our environment, our ecosystem, and trying to
promote it in that sense. So, there is diversification that
needs to be implemented here.
Mr. Garcia. And just to close, all of this is happening
because of a midnight rider that is giving our public lands,
the sacred lands of tribes, to a corporation. I yield back, Mr.
Mr. Gallego. I now recognize Chairman Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman.
Dr. Wells, Arizona was part of other states that the
Colorado River sustains that did the contingency plan.
Dr. Wells. Right.
Mr. Grijalva. And within 7 years or so, Arizona, like the
other states, are going to have to have some permanence to
water usage, conservation, etc., because the point that you
made about that finite resource being finite, this drain from
this irresponsible mine in terms of the water resources and
putting this mine at the top of the list in terms of access to
future water usage, your comment on that?
Dr. Wells. Well, I mentioned in my testimony that this is
the amount of water that would be required by a city of 140,000
people. So, if you and I were developers and we went to Arizona
and put forth a proposal to build a new city with 140,000
people, the rules that are in place right now for managing
groundwater resources would slam that down in no time. The
priorities that mining operations have under Arizona water law
do exactly that. They really do raise these kind of projects to
the top of the list.
And the fact of the matter is that I think it wasn't widely
appreciated by folks in Arizona that this mine was going to be
drawing so much water not really from the mine site, although
they are drawing a lot of water from the mine site, but from
down in the valley which is part of the Phoenix Active
Management Area. This is a part of Arizona that is already
running out of water.
Mr. Grijalva. Yes, and if I may also, Dr. Emerman or Dr.
Wells, whichever, the issue of waste that what the taxpayer
gets is that they get to keep the waste for the mine in
perpetuity. The consequences of that, short-term, you talked
about. We don't know when, but it will become a problem. And
that is going to be a cost because the liability will never be
with the mining company. They will have a sweetheart deal. They
will get out. They have one now.
So, it is almost urgent for resource issues to prevent this
mine from going forward. No. 1, water availability and usage
overall in the state is critical. And No. 2, the 1872 Mining
Law goes against any rational scientific way to look at--if
there are going to be options, let's have options.
The lack of full payment and recovery by the taxpayers in
terms of any royalties down the line--so this is why it is so
important what the San Carlos Tribe is doing and what the
Stronghold is doing. They are raising a very important issue, a
legal obligation and responsibility that this Congress has in
terms of the trust responsibility to Native Nations and to
Indigenous people in this country. And the fact that we are not
upholding that, and that for a foreign company we have bent the
rules, changed the criteria and, basically, jeopardized
economic development, water usage, and communities nearby in
order to sustain collateral damage, which happens to be the
Tribe, primarily, in order for this mine to prosper. I think
that that goes to the heart of this hearing, that this has been
a disjointed, ugly process to get this permit and to do the
land exchange. I think we have an obligation to look at every
avenue available to us as a Congress to begin to reverse this.
And if we are going to do a study, let's do a real study.
Let's put science first. And as Mr. Nosie said, let's look at
something that is real science that is transparent, objective,
peer-reviewed, and not beholden to the company in terms of
having to respond to what their priorities are. I yield back,
Mr. Gallego. Thank you, Chairman.
I would like to thank our witnesses for their insightful
testimony and the Members for their questions. As I stated
before, the members of the Committee may have some additional
questions for witnesses and will ask you to respond to these in
writing. Under Committee Rule 3(o), members of the Committee
must submit witness questions within 3 business days following
the hearing. The hearing record will be open for 10 days for
these responses. If there is no further business, without
objection, the Committee stands adjourned.
Normally we would actually stand up and go and shake your
hands and thank you for being here, but I think under the
circumstances, I hope you will understand that I do appreciate
you being here. I do appreciate our first panel of witnesses
for being really so instructive and showing your heart and
bringing this closer to our heart. I thank you again, and
please have safe travels back. Adjourned.
[Whereupon, at 10:33 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement for the Record
INTER TRIBAL ASSOCIATION OF ARIZONA
The Inter Tribal Association of Arizona, Inc., is a non-profit
inter tribal consortium of 21 federally recognized Indian tribes,
nations, and communities.\1\ ITAA's Member Tribes have worked together
since 1952 to provide a united voice for Tribal governments located in
the State of Arizona on matters of common interest and concern. The
representatives of ITAA are the highest elected Tribal officials from
each Tribe, including chairpersons, presidents, and governors.
\1\ ITAA's Member Tribes are the Ak-Chin Indian Community, Cocopah
Indian Tribe, Colorado River Indian Tribes, Fort McDowell Yavapai
Nation, Fort Mojave Indian Tribe, Gila River Indian Community,
Havasupai Tribe, Hopi Tribe, Hualapai Tribe, Kaibab-Paiute Tribe,
Pascua Yaqui Tribe, Pueblo of Zuni, Quechan Tribe, Salt River Pima-
Maricopa Indian Community, San Carlos Apache Tribe, San Juan Southern
Paiute Tribe, Tohono O'odham Nation, Tonto Apache Tribe, White Mountain
Apache Tribe, Yavapai-Apache Nation, and the Yavapai Prescott Indian
On behalf of our Member Tribes, ITAA appreciates the opportunity to
submit this testimony that summarizes some of ITAA's primary concerns
about the irreparable religious, cultural, and environmental
consequences of the proposed Resolution Copper Mine (RCM). For the
convenience of the Subcommittee, ITAA has attached to this testimony
our November 7, 2019, written comments to the Resolution Copper Project
Land Exchange Draft Environmental Impact Statement (DEIS) submitted to
the Tonto National Forest pursuant to 26 C.F.R. Sec. 218.8.\2\ These
comments provide a detailed discussion of some of the rampant failures
in the DEIS and ITAA's concerns related to potential development of the
\2\ Because of the lengthy nature of the attachments to the ITAA
comments to the DEIS, we have not re-attached these documents to this
testimony, although a complete set of comments can be obtained from
Maria Dadgar, Executive Director of ITAA at (602) 258-4822.
The RCM Will Destroy Historic and Cultural Resources and Violate
Religious Freedoms Protected Under the U.S. Constitution and
If developed, the RCM will result in the destruction of Chi'chil
Bildagoteel (Oak Flat) Historic District, a traditional cultural
property (TCP) listed on the National Register of Historic Places under
the National Historic Preservation Act (NHPA). Indeed, as part of this
mine, Resolution Copper is seeking to blast and remove 1.4 billion tons
of rock from beneath the Oak Flat area. For years, Resolution Copper
has denied that this mine activity would create a significant
subsidence crater on the land surface. The DEIS (available at https://
www.resolutionmineeis.us/documents/draft-eis) now acknowledges what
opponents of the RCM project have long warned--that the project will
leave a subsidence crater of approximately 1.8 miles in diameter (2.5
square miles) and over 1,000 feet deep which will wipe Oak Flat out of
existence, permanently destroying this environmentally precious and
culturally significant place. The DEIS notes that there are also 721
archaeological sites that will be directly impacted by the RCM
project.\3\ Of these, 523 are recommended or determined to be eligible
for the National Register of Historic Places under the NHPA.\4\ These
figures are likely higher, since at the time the DEIS was published,
the cultural resource survey of the tailings location was not completed
and was actually still underway. Other harmful impacts to cultural
resources and the environment are anticipated from the construction of
the massive amount of additional infrastructure that must be developed
to support the RCM, including pipelines, access roads, and new and
expanded power lines and transmission corridors. Tonto National Forest
admits at Section 1.7.4 of the DEIS that the RCM:
\3\ DEIS, pp. 627-628.
\4\ DEIS, pp. 628-629.
``would profoundly and permanently alter the National Register
of Historic Places (NRHP)--listed Chi'chil Bildagoteel (Oak
Flat) Historic District Traditional Cultural Property (TCP)
through anticipated large-scale geological subsidence . . .
development of the proposed tailings storage facility at any of
the four proposed or alternative locations would permanently
bury or otherwise destroy many prehistoric and historic
cultural artifacts, potentially including human burials.''
The transfer of the approximate 2,400 acres of historic and
culturally significant lands (currently Tonto National Forest) to
foreign mining interests, BHP Billiton, Ltd. and Rio Tinto, and the
corresponding development of the unprecedented and grossly destructive
RCM project, will, among other things, violate the religious freedoms
of those tribal members of our Member Tribes who gather specifically at
Oak Flat to pray and perform important religious ceremonies and to
collect important medicinal plants and water sources that are imbued
with the healing power of this place, just as their ancestors have done
for countless generations. Member Tribes, including the San Carlos
Apache Tribe, also have tribal members who gather traditional foods,
like Emory Oak acorns, at Oak Flat, which are an important part of the
Western Apache traditional diet.
In the words of President Trump, ``[e]ach of us has the right to
follow the dictates of our conscience and the demands of our religious
conviction.'' \5\ In support of this sentiment, on May 4, 2017,
President Trump signed the Presidential Executive Order No. 13798--
Promoting Free Speech and Religious Liberty. Section 1 states that
``[i]t shall be the policy of the executive branch to vigorously
enforce Federal law's robust protections for religious freedom,'' and
that ``[f]ederal law protects the freedom of Americans and their
organizations to exercise religion and participate fully in civic life
without undue interference by the Federal Government.'' These federal
protections include the American Indian Religious Freedom Act, 42
U.S.C. 1996, and the Religious Freedom Restoration Act, 42 U.S.C.
\5\ See Remarks by President Trump in Meeting with Survivors of
Religious Persecution (July 17, 2019).
At a time when religious freedoms are purported to be highly valued
and carefully guarded from government infringement, the passage of the
Southeast Arizona Land Exchange and Conservation Act and the
destructive mining activity that it purports to authorize will cause
the total and permanent destruction of Oak Flat and, with it, the
religious freedoms of those tribal members whose religious practices
are directly tied to this sacred place. This pointedly contradicts the
values of religious liberty espoused by this administration and the
protections provided by the First Amendment to the United States
Constitution, among other things.
Given the Forest Service's acknowledgement in the DEIS of the
sweeping impact of the mine project on historic resources, it is
disturbing that the descriptions and analyses of the historic
properties, the assessments of eligibility and effect, and the measures
to resolve adverse effects contained in the DEIS are generally
incomplete and fail to enable meaningful or sufficient tribal and
stakeholder involvement in the Section 106 process prescribed by the
National Historic Preservation Act. Further, the Programmatic Agreement
(PA) developed by the Tonto National Forest should have provided both
project and context specific information and protocols to assist public
and other consulting parties in advising and assisting TNF in meeting
its historic property identification, evaluation, and effect
assessment, avoidance, and reduction mandates. However, the
Programmatic Agreement--to this day--has yet to be completed and
executed, even though it was relied on exclusively by the agencies to
satisfy their tribal consultation obligations pursuant to Section 106
of the NHPA throughout the DEIS. Even the Arizona's State Historic
Preservation Officer and the Advisory Council on Historic Preservation
have expressed serious concern with the PA.
Because the Southeast Arizona Land Exchange and Conservation Act
mandates that the land exchange occur once the final EIS is published,
participating ITAA Member Tribes have effectively been forced to choose
between participating in the PA Agreement, which necessitates being
involved in a project that is directly harmful to them, and not
participating and having no voice in how the process proceeds. This
point was clearly articulated in the preamble of the latest draft of
the PA (released in November 2019), which states, ``it has been made
clear to the Forest Service that no Tribe supports the desecration/
destruction of ancestral places where ancestors have lived, as these
are considered alive and sacred,'' and that, ``Tribal members have
communicated that participation in the design of this destructive
activity has caused considerable emotional stress and brings direct
harm to the traditional way of life to Tribes; however, it is still
deemed necessary to ensure ancestral homes and ancestors receive the
most thoughtful and respectful treatment possible.'' Even so, the PA
still falls egregiously short of meeting the tribal consultation
requirements it is purported to satisfy.
The Tonto National Forest Has Failed to Address the Case of Center for
Biological Diversity, et al. v. United States Fish and Wildlife
Service, et al.
Much has changed since the Mining Law of 1872 was originally
passed, as demonstrated by the recent District Court's decision on the
Rosemont Mine Record of Decision. See Center for Biological Diversity,
et al. v. United States Fish and Wildlife Service, et al., 409 F. Supp.
3d 738 (D.Ariz. 2019). In that case, although Rosemont Copper had
unpatented mining claims in the area of the National Forest where it
intended to dump 1.9 billion tons of waste, the Forest Service
accepted, without question, that those unpatented mining claims were
valid, despite, as the District Court later concluded, there ``must be
a valuable mineral deposit underlying the claim,'' in order to have a
valid unpatented mining claim. Id. at 8. As a result, the District
Court concluded this assumption was ``a crucial error'' that tainted
the Forest Service's evaluation of the Rosemont Mine from the start.''
This very same issue was similarly raised by EPA Region 9 in its
comments submitted on RCM DEIS. There, the EPA recommended that TNF
include ``discussion of the status of the proponent's mineral claims,
impacts to other unpatented claims, and how this may affect the USFS's
and BLM's discretion in decision-making for this project,'' in light of
the July 2019 court decision on the Rosemont Mine Record of Decision in
Center for Biological Diversity, et al. v. United States Fish and
Wildlife Service, et al. The status of Resolution Copper's mineral
claims must be validated pursuant to the Mining Law and not assumed by
Tonto National Forest as they do in the DEIS. This is required under
controlling law and it cannot be skipped over as Resolution Copper
The RCM Project Will Consume at Least 750,000 Acre-Feet of Water
According to Resolution Copper's Own Estimates
There are numerous water sources in the Oak Flat region, including
Queen Creek and Ga'an Canyon (Devil's Canyon), as well as countless
springs and seeps that support the health and vitality of the Oak Flat
environment. Resolution Copper has submitted an application for a
permit pursuant to Sec. 404 of the Clean Water Act to discharge fill
materials into approximately 124 acres waters. See United States. Pub.
Notice/Application No.: SPL-2016-00547-MWL (Resolution Copper Mine
Tailings Storage Facility). According to the application, ``the
development of the [Tailing Storage Facility] and its appurtenant
infrastructure would result in the permanent loss of the potential
waters of the U.S. within the footprints of these mine elements.'' (p.
1). This will occur through the transport and storage of approximately
1.37 billion tons of toxic mine tailings.
These Clean Water Act 404 eligible water sources, along with
numerous other riparian areas, springs, and seeps will be dewatered or
destroyed by the RCM project. Yet these same water sources support a
rich variety of animal species that have been documented at Oak Flat,
including Sonoran ocelot (an engaged species), as well as black bear,
mountain lion, bobcat, coatimundi, javelina, ring-tailed cat, all four
native Arizona species of skunk, and many other animals. Oak Flat is
also an important area for both resident and migrating bird species,
including Bald and Golden Eagles (that have religious and cultural
importance to ITAA Member Tribes) and at least four bird species that
have been placed on the National Audubon Society's watch list. The RCM
project will destroy these important riparian areas and, in turn,
destroy this important habitat forever. We should not allow this.
ITAA is also concerned for the long-term future water supply of the
region and the state as a whole if the RCM is constructed. As Arizona
confronts new challenges associated with its long-term water supply,
the RCM project will consume vast quantities of water--at least 750,000
acre-feet during the life of the mine, according to Resolution Copper's
own estimates \6\--which is easily enough water to serve 1 million
households in the City of Phoenix for 3 years. The DEIS acknowledges
only a fraction of this amount. Close scrutiny of RCM's General Plan of
Operations and documents filed by Resolution Copper with ADWR, show
that, even from Resolution Copper's own estimates, there will be
massive unmet water consumption needs for the RCM project.\7\ It should
also be noted that industry standards and averages for copper mines
indicate that the water demand number provided in Resolution Copper's
own materials is grossly underestimated. In fact, is about one-third of
what is commonly needed for mines of this scope, indicating that
Resolution Copper's own estimates of its water demand are significantly
\6\ See Resolution Copper Mining General Plan of Operations, Volume
2, Figures 3.6-1a, 3.6-1b, 3.6-1c (May 9, 2016).
\7\ Resolution Copper Mining Application for Non-Indian
Agricultural (NIA) Water Reallocation, submitted to the Arizona
Department of Water Resources (June 14, 2013).
Mine dewatering and groundwater pumping associated with the RCM
project will result in a disproportionate impact to regional water
supplies, including in nearby Pinal County, where some residential
wells are already beginning to go dry at certain depths due to
sustained drought and existing pumping demands.\8\ Much of this water
is projected to come from Pinal County, including from the Desert
Wellfield, which, according to Resolution Copper's General Plan of
Operations, will include approximately 30 high capacity groundwater
wells, that will pump at a rate of at least 400 gallons per minute.
However, ADWR has already determined there is a shortfall of 8.1
million-acre feet in the Pinal Active Management Area for meeting
projected demands over the next 100 years \9\--and this is without
considering groundwater depletions needed for the RCM.
\8\ See ABC15 News, Private Wells Running Dry in Pinal County (Oct.
\9\ See Arizona Department of Water Resources News Release, ADWR
Posts Pinal Model Run Information (November 7, 2019)
Indeed, the DEIS (p. ES-24) states that pumping from Resolution
Copper's Desert Wellfield to be located in the East Salt River Valley
MARRCO corridor ``would incrementally contribute to the lowering of
groundwater levels and cumulatively reduce overall groundwater
availability in the area'' but the DEIS contains no meaningful analysis
of impacts or plans for mitigation relative to regional water supplies
that are already limited by growth and pumping. In fact, the DEIS (p.
342) sets up and immediately dismisses Tonto National Forest's
obligation to consider the cumulative impacts from mine pumping on
these water sources, quickly concluding that ``the total demand on the
groundwater resources in the East Salt River valley is substantial and
could be greater than the estimated amount of physically available
groundwater,'' but that ``it is not possible to quantify the cumulative
water use in the area'' due to ``uncertainties.''
At the end of the day, the Tonto National Forest has simply given
no consideration to the steep costs to residential and agricultural
well owners in this region if they are forced to deepen their wells to
access water due to mine pumping. And there is no mitigation of any
kind planned on this topic in the DEIS.
The Mine will also consume extensive water supplies delivered from
the Colorado River through the Central Arizona Project (CAP) system,
even though these supplies are facing an impending shortage due to
overallocation, prolonged drought, and climate change.\10\ The
situation on the Colorado River has become so dire that in 2019
Congress passed legislation approving the Colorado River Drought
Contingency Plan with the assistance of several Arizona tribes, which
was jointly submitted to Congress by the seven Upper and Lower Basin
states of the Colorado River, including Arizona.\11\ Yet, the RCM
project relies heavily on the use of Colorado River supplies, even
though future supplies of Non-Indian Agricultural (NIA) priority water
are highly uncertain.\12\
\10\ See Congressional Research Service Report No. R45546,
Management of the Colorado River: Water Allocations, Drought, and the
Federal Role (Nov. 25, 2019). See also, Bureau of Reclamation Colorado
River Basin Water Supply and Demand Study (Dec. 2012).
\11\ Colorado River Drought Contingency Plan Authorization Act of
2019 (P.L. 116-14).
\12\ Resolution Copper Mining Application for Non-Indian
Agricultural (NIA) Water Reallocation, submitted to the Arizona
Department of Water Resources (June 14, 2013).
If CAP supplies cannot be secured by Resolution Copper, the project
will rely on the development of numerous additional groundwater wells
that can be drilled in Pinal County and throughout the region with
mineral extraction permits issued by ADWR, exacerbating the mine's
threat to existing residential and agricultural wells and the regional
groundwater supply that is needed to support future municipal growth
and agricultural production. Again, Tonto National Forest has failed to
consider these impacts or possible mitigation scenarios in the DEIS or
While Resolution Copper makes much of the fact that they have
stored CAP and other water sources, accumulating legal ``storage
credits'' under Arizona law, ostensibly to support the RCM project,
this is ``not required under Arizona water law'' and is merely a
``voluntary measure.'' (DEIS p. 341). There is no guarantee that
Resolution Copper will use this water to offset their regional pumping
demands for the RCM. Either way, because Resolution Copper has stored
water in multiple storage facilities located in various different sub-
basins throughout the state, many of which are nowhere near the Desert
Wellfield, the drawdown and associated impacts to local well owners and
future water supplies stemming from Desert Wellfield pumping (or future
wells developed under mineral extraction permits issued by ADWR), will
not be fully mitigated by long term storage credits that have been
stored by Resolution Copper, many miles away.
Contamination and Pollution
The Resolution Copper Mine General Plan of Operations reveals
numerous risks of spills, leaks, migration of contaminated groundwater,
acid mine drainage, dam failures, pipeline and slurry failures,
regional haze, harmful airborne particulates, a toxic pit lake in the
subsidence crater, and impacts to air quality from the mine project.
Many of these risks and effects will continue (potentially forever)
after production ends and the mine closes.
Acid mine drainage at the tailings storage site is one of the most
significant and problematic impacts of this type of mining operation.
Over time, exposure of tailings materials to oxygen (oxidation) is
expected to generate acid and increase levels of pollutants to water
resources, perhaps for thousands of years. Considering the RCM will
deposit at least 1.5 billion tons of tailings in Dripping Springs Wash,
approximately 13 miles from the Gila River, this is extremely
concerning. Additionally, since the water analysis for this region in
the DEIS only analyzed one sample of groundwater and one sample of
surface water (DEIS, p. 367, 369) any conclusions made by Tonto
National Forest on the long-term effects of the RCM on regional water
quality are unhelpful and likely invalid.
Construction, emissions, mining operations, and other activities
will increase dust and particulates, airborne chemicals, and mobile
emissions in the region and could compromise air quality standards.
Mines are known to create problems with blowing dust due to miles of
dirt roads and exposed and denuded surfaces, such as tailings piles.
These effects are likely to continue for a long time, long after
operations cease, impacting air quality across the Tonto National
Forest and the region including the towns of Superior, Queen Valley,
and San Tan Valley. This mine will also produce a great deal of light
and noise pollution, with significant impacts to ecosystems and
wildlife, impacting the health of the natural world and impacting the
vitality of the Oak Flat TCP, among other problems.
ITAA Continues to Oppose the Resolution Copper Mine and a Congressional
Transfer of Public Lands to Benefit Private Mining Interests
For all of the above stated reasons and for those detailed in
ITAA's comments to the DEIS (attached), ITAA's has steadfastly opposed
the RCM project as well as the various versions of the Southeast
Arizona Land Exchange and Conservation Act legislation since at least
2009.\13\ Over the years, ITAA and a significant number of ITAA Member
Tribes have repeatedly passed formal resolutions, written letters, and
testified before Congress opposing the land exchange and the proposed
RCM. In fact, as recently as August 23, 2019, the Member Tribes of ITAA
adopted Resolution 0419, Support for Repeal of Section 3003 of the FY
2015 National Defense Authorization Act, the Southeast Arizona Land
Exchange (attached). The Land Exchange has also been opposed by many
hundreds of tribal nations, Native organizations, and others across the
United States, including as recently October 20, 2019, when the
National Congress of American Indians (NCAI) passed Resolution #ABQ-19-
062, titled ``Support for the Protection of Oak Flat and Other Native
American Sacred Spaces from Harm'' (attached).
\13\ ITAA is the public advocacy arm of the Inter Tribal Council of
Arizona, Inc. (ITCA).
However, in December 2014, after almost a decade of various
versions of the unpopular bill dying in both houses of Congress under
both Republican and Democratic administrations, the bill was added as
an unrelated amendment to the 2015 National Defense Authorization Act,
a must-pass piece of funding legislation, bypassing the proper
legislative channels and forcing the bill into law.
As noted above, in August 2019, the Tonto National Forest published
the DEIS on the proposed Resolution Copper mine. The comment period
ended in November 2019, despite the requests of ITAA and other
concerned parties that the deadline be extended due to the complex
nature of the project and its potential far ranging and adverse
The Tonto National Forest is now estimating that the final EIS
(FEIS) could be published by the end of this year (winter of 2020).
And, under the land exchange legislation, Oak Flat will be transferred
from Tonto National Forest into the private hands of Resolution Copper
no later than 60 days after the FEIS is published. This outcome is not
acceptable to ITAA, and it should not be acceptable to Congress.
The United States has a treaty and trust responsibility to our
Member Tribes to preserve the religious freedom of tribal practitioners
who rely on the continued existence of Chi'chil Bildagoteel/Oak Flat as
a critical part of their religious beliefs. The United States should
protect tribal cultural resources located on federal lands from being
transferred to private interests to facilitate their destruction,
solely for the commercial interests of these foreign mining giants.
ITAA respectfully urges Congress to use its authority to block the
transfer of the public lands known as ``Chi'chil Bildagoteel'' to
Resolution Copper and to pass the Save Oak Flat Act. Anything less
leaves this Congress with the shared responsibility for the destruction
of this special environmental, religious, and cultural treasure.
Thank you for providing an opportunity on the part of the Inter
Tribal Association of Arizona and our 21 Member Tribes to submit this
Inter Tribal Association of Arizona
November 7, 2019
Neil Bosworth, TNF Supervisor
Tonto National Forest
2324 East McDowell Road
Phoenix, Arizona 85006
Re: Comments of the Inter Tribal Association of Arizona, Inc. on the
Resolution Copper Project Land Exchange Draft Environmental
Impact Statement (DEIS)
Dear Supervisor Bosworth:
On behalf of the Inter Tribal Association of Arizona, Inc. (ITAA),
a non-profit inter Tribal consortium of 21 Member Tribes in Arizona,
please accept this letter and all of its attachments on the enclosed
thumb drive per 26 C.F.R. Sec. 218.8 (all of which are expressly
incorporated by reference as if set forth in full).\1\ The letter and
its attachments comprise ITAA's formal written comments on the proposed
Resolution Copper Mine Project/Land Exchange and DRAFT Environmental
Impact Statement (DEIS).\2\
\1\ ITAA is including the attachments electronically on the
enclosed thumb drive, as opposed to uploading these comments at the
online portal (www.ResolutionMineEIS.us/Comment), because the portal
does not allow documents to be uploaded in excess of 20MB. In order to
comply with 36 C.F.R. 218.8(b), it is ITAA's understanding that we are
required to include all of the documents ITAA is relying upon with our
objections. Because of the massive size of the proposed project, the
complexities of the DEIS, and the extensive nature of ITAA's original
scoping comments, these documents well exceed 20 MB in size,
necessitating their inclusion by electronic means on the enclosed thumb
drive. As discussed in greater detail below, given the scope of the
project and DEIS, providing a portal that limits the ability of
commentators to fully comment due to the size of documents that can be
uploaded fails to comply with basic tenets of due process, the public
participation and other fundamental requirements of NEPA.
\2\ The comments provided here are intended to address certain
overarching concerns of the ITAA Member Tribes relative the DEIS. These
comments are not intended to speak on behalf of any one Member Tribe or
to address those particularized concerns that any one of our Member
Tribes may have on this topic.
As discussed in greater detail below, these comments focus on
numerous material failings in the DEIS, including but not limited to
the water and cultural resource aspects of this project. The issues
raised in ITAA's comments are based on previously submitted, timely and
specific comments raised during the scoping period. Where we have
deviated from our prior scoping comments, this is due to a need to
address the wide range of new information that has been included in the
record since the close of the scoping period.
Overall, ITAA was disappointed with the lack of completeness and
overall quality of the DEIS. Indeed, the DEIS is at the level of
material deficiency that we believe the Forest Service should indeed go
back to the drawing board and start over at the beginning to craft an
EIS that fully complies with the National Environmental Policy Act
(NEPA), the National Historic Preservation Act (NHPA), and myriad of
other controlling Federal laws and regulations.
In an effort to limit redundancy among commenting parties, pursuant
to Section 36 C.FR. Sec. 218.8, ITAA hereby expressly adopts and
incorporates as if stated in full the attached DEIS comments filed this
same day by the Arizona Mining Reform Coalition (AZMRC) which address
the many other failings of the DEIS, such as air quality, biological
resources, climate change, socioeconomics, and recreation, among other
The Member Tribes of the ITAA have worked together since 1952 to
provide a united voice for Tribal governments located in the State of
Arizona. The representatives of ITAA are the highest elected Tribal
officials from each Tribe, including chairpersons, presidents, and
The ITAA and its parallel organization, the Inter Tribal Council of
Arizona, Inc. (ITCA), have taken a position in opposition to Resolution
Copper's mine proposal and the various versions of the Southeast
Arizona Land Exchange and Conservation Act legislation since at least
2009. The potential acquisition by Resolution Copper Mine (RCM) of
approximately 2,400 acres of public land near Superior, Arizona
commonly known as ``Oak Flat'' for the development of a large scale and
highly destructive copper mine is an ongoing matter of serious concern
to many of our Member Tribes, since Oak Flat is a culturally and
historically significant place to certain Western Apache, including
members of the San Carlos Apache Tribe, as well as members of the
Yavapai and other Tribal cultures in the region. Over the years, ITAA
and a significant number of ITAA Member Tribes have repeatedly passed
formal resolutions, written letters, and testified before Congress
opposing the land exchange and the proposed mine.
The Land Exchange has also been opposed by many hundreds of tribal
nations, Native organizations, and others across the United States,
including as recently as last month, when the National Congress of
American Indians (NCAI) passed Resolution #ABQ-19-062 on October 20,
2019 titled ``Support for the Protection of Oak Flat and Other Native
American Sacred Spaces from Harm'' (attached).
II. THE NEPA PROCESS WAS MODIFIED BY Sec. 3003 OF P.L. 113-291.
Unlike a normal NEPA evaluation of a mining General Plan of
Operations (GPO), the Tonto National Forest (TNF) is also subject here
to Sec. 3003 the Carl Levin and Howard P. ``Buck'' McKeon National
Defense Authorization Act for Fiscal Year 2015 (P.L. 113-291)
(``NDAA'') in which Congress authorized and directed the Secretary of
Agriculture to transfer the 2,422 acres of Forest Service land at Oak
Flat for the benefit of Resolution Copper in exchange for 5,344 acres
of private lands on eight parcels scattered throughout Arizona. The
unusual conditions imposed by Congress for the land exchange must be
calculated in the DEIS process and thus, these conditions are discussed
USDA NEPA regulations, 7 CFR Part 3407, provide for an objection
period upon publication of a Final Environmental Impact Statement
(FEIS) and Record of Decision (ROD). However, Sec. 3003(c)(10) of P.L.
113-291 diverts from the typical process, stating that ``No later than
60 days after the date of publication of the final environmental impact
statement, the Secretary shall convey all right, title, and interest of
the United States in and to the Federal land to Resolution Copper.''
The ``Dear Reader'' letter dated August 1, 2019 posted on the TNF
website and enclosed with the DEIS states that although the ROD will be
subject to an administrative review/objection process, ``[t]he Land
Exchange will be fully executed no later than 60 days after the release
of the Final EIS'' which is anticipated in summer 2020. Since the
language permits that full execution of the Land Exchange may occur
immediately upon release of the Final EIS (FEIS) (absent a court
ordered injunction), Congress appears to have limited the normal
objection process required by NEPA by providing for the exchange and
thereby imposing irreparable harm occasioned by the transfer of this
sacred site to private hands for mining purposes before the normal time
frame and public process is completed under NEPA and before full
remedies for any violation of NEPA can be pursued.
In another deviation from the norm, Section 3003(c)(3) provides for
additional consultation requirements with Indian tribes which
supplement (not supplant) the existing consultation requirements under
NEPA, NHPA, and other applicable law:
(3) CONSULTATION WITH INDIAN TRIBES.--
(A) IN GENERAL.--The Secretary shall engage in government-
to-government consultation with affected Indian tribes
concerning issues of concern to the affected Indian tribes
related to the land exchange.
(B) IMPLEMENTATION.--Following the consultations under
paragraph (A), the Secretary shall consult with Resolution
Copper and seek to find mutually acceptable measures to--
(i) address the concerns of the affected Indian
(ii) minimize the adverse effects on the affected
Indian tribes resulting from mining and related
activities on the Federal land conveyed to Resolution
Copper under this section.
Whether or not the TNF has fully complied with this specific and
supplemental consultation requirement is not discussed in the DEIS and
there is no evidence that TNF has met this statutory requirement. To
the extent that the draft Programmatic Agreement is intended to address
the obligations under Sec. 3003(c)(3), ITAA does not concur that
consultation obligations have been met, nor are the attempts to
minimize adverse effects ``mutually acceptable'' as required by law.
Many other aspects of TNF's inadequacy of consultation are discussed
further in these comments, below.
Interestingly, Sec. 3003(c)(9)(B) of P.L. 113-291 also diverges
sharply from the normal NEPA process by requiring that the Secretary
``shall prepare a single environmental impact statement'' under NEPA
which ``shall be used as the basis for all decisions under Federal law
related to the proposed mine and the Resolution mine plan of operations
and any related major Federal actions . . .'' ITAA has repeatedly asked
the TNF to explain how this unusual provision will be implemented as
part of the NEPA process in this case. We have yet to receive an
answer. Nevertheless, it is ITAA's conclusion that any ambiguities or
uncertainties about how this NEPA process will be conducted should be
resolved in favor of meeting all NEPA obligations in full, as required
\3\ Throughout these Comments, all references to NEPA or to
violations of NEPA intrinsically include but are not limited to:
Section 102 of the National Environmental Policy Act of 1969, 42 U.S.C.
Sec. 4321 et seq., and accompanying implementing agency regulations; 40
C.F.R. Parts 1500-1518 (CEQ Implementing Regulations); 36 C.F.R. Part
220 (USFS Implementing Regulations); and 32 C.F.R. Part 651 (Army Corps
Furthermore, because under the Act there is only a single NEPA
document that can be used for the entire project--meaning that the Act
does not allow any other meaningful opportunity for additional
stakeholder comment prior to execution of the land exchange or conduct
of mining activities--the Forest Service's obligations (and those of
the Army Corps of Engineers) to prepare a complete NEPA document in the
instant DEIS are significantly higher than under a normal NEPA process
(where, for example stakeholder comments on the EIS and ROD may be
considered, and supplemental NEPA documents could be prepared to
Accordingly, in this instance, it is crucial that all components of
the General Plan of Operations and its related processes, and all
scientific and other studies, must be completed and included in the
current DEIS and not punted until a later point in time. Therefore,
suggestions by the TNF that new components or considerations related to
the mine can await the preparation of final EIS and ROD or future
special use permit process (as has been alluded to in many instances in
the DEIS) are improper and unlawful.
The specific Congressional mandate at Sec. 3003(c)(9)(B) that ``the
Secretary shall prepare a single environmental impact statement under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.)'' applies to three different categories of federal actions.
FIRST, Congress has stated that the single EIS ``shall be used as the
basis for all decisions under Federal law related to the proposed
mine.'' SECOND, that the single EIS ``shall be used as the basis for [
... ] the Resolution mine plan of operations.'' And THIRD, that this
very same single EIS ``shall be used as the basis for [. . .] any
related major Federal actions significantly affecting the quality of
the human environment, including the granting of any permits, rights-
of-way, or approvals for the construction of associated power, water,
transportation, processing, tailings, waste disposal, or other
ancillary facilities.'' Sec. 3003(c)(9)(B).
In this regard, Congress has specifically designated each of the
three above described categories of federal actions as connected
actions under NEPA. Connected actions are ``closely related and
therefore should be discussed in the same impact statement. Actions are
connected if they: (i) automatically trigger other actions which may
require environmental impact statements. (ii) Cannot or will not
process unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the
larger action for justification.'' 40 C.F.R. Part 1508.25.
Accordingly, Section 3003(c)(9)(B) does not permit, as the TNF
suggests, the exemption of any connected action from the current EIS
process. Power line construction and related substations and
transmission facilities are but one example of the type of federal
actions that, at the very minimum, must be considered in the current
EIS under both the THIRD category of Sec. 3003(c)(9)(B) (as a major
federal action) and under the FIRST category of Sec. 3003(c)(9)(B) (as
a decision subject to Federal law) and as a connected action under
NEPA. In addition to power infrastructure, examples of other connected
actions under NEPA and Sec. 3003 of the NDAA which are ``required for
the mine to be operational'' and should not be simply ``done later'' as
TNF and the Army Crops suggest, include, but are not limited to,
Sec. 401 Permit and Sec. 404 Permit under the Federal Clean Water Act;
any permitting decisions under the Migratory Bird Treaty Act (MBTA) and
the Bald and Golden Eagle Protection Act (BGEPA), Section 7
consultation required under the Endangered Species Act, necessary Air
Quality Control Permits and other requirements under the Federal Clean
Air Act, Safe Drinking Water Act compliance, including any needed APP
permitting, management of hazardous waste and other waste. TNF's
failure to abide by these requirements violates NEPA and the NDAA.
In addition to these failures, the TNF is reminded that project
segmentation is a violation of NEPA. Separation of analysis and staged
approval processes for matters such as the construction of new or
upgraded power transmission lines and substations outside of the scope
of NEPA fails to consider the cumulative effects of those actions in
light of the other mining and related actions currently under TNF
consideration in the DEIS--a stark violation of NEPA. See, e.g., Thomas
v. Peterson, 753 F.2d 754 (1985); see also Wetlands Action Network v.
U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1118 (2000). The Council on
Environmental Quality's regulations implementing NEPA require that an
agency consider ``connected actions'' and ``cumulative actions'' within
a single EIS. 40 C.F.R. Sec. 1508.25. The terms ``connected action''
and ``cumulative action'' do not even appear anywhere in the DEIS.
Overall, the lack of detail, vague assertions, lack of scientific
accuracy and substantiation in the DEIS indicate that this DEIS has not
only failed to comply with NEPA and applicable laws, it has also failed
to comply with the requirements of the NDAA itself. The only conclusion
that can reasonably be drawn from TNF's decision to release such a
grossly deficient DEIS is that TNF was subject to substantial political
pressure to complete this process sooner than expected. This does not
justify, however, the lack of compliance with NEPA, the NDAA, and other
applicable laws and policies. In light of the above, the scope of this
DEIS is neither appropriate nor complete.\4\
\4\ Despite this specific question being raised during the scoping
comment period, no answer has ever been received regarding whether
State agencies also intend to rely on this EIS for their studies,
assessments, reviews, and otherwise on this project.
III. RENEWED REQUEST FOR EXTENSION OF COMMENT PERIOD
A. INSUFFICIENT PUBLIC PARTICIPATION AND NOTICE
On August 15, 2019, ITAA submitted a request asking that the DEIS
comment period be extended to 180 days, and requesting that additional
public meetings be held in the Phoenix and Tucson metro areas. A copy
of that request is attached here.
Reasons for this request included, in part, woefully inadequate
public notification about the DEIS release, comment period initiation,
and scheduled public meetings. Pursuant to USFS Regulations, public
notices ``must clearly describe the action subject to notice and the
nature and scope of the decisions to be made; identify the responsible
official; describe when, where, and how the responsible official will
provide opportunities for the public to participate in the planning
process; and explain how to obtain additional information.'' 36 C.F.R.
Sec. 219.16. USFS regulations also require that, ``[t]he responsible
official shall engage the public--including Tribes and Alaska Native
Corporations, other Federal agencies, State and local governments,
individuals, and public and private organizations or entities--early
and throughout the planning process as required by this part, using
collaborative processes where feasible and appropriate,'' and that
``[t]he responsible official shall provide opportunities to the public
for participating in the assessment process; developing a plan
proposal, including the monitoring program; commenting on the proposal
and the disclosure of its environmental impacts in accompanying
National Environmental Policy Act (NEPA) documents; and reviewing the
results of monitoring information.'' 36 C.F.R. Sec. 219.4.
On August 9, 2019, the EPA listed the DEIS in the Federal Register
as part of its weekly EIS receipt list only--this notice contained less
than 20 total words and provided no information about the project,
public meetings, or even where the public could go to access a copy of
the DEIS itself. Even individuals who had registered for Forest Service
or USDA notices in the Federal Register would not have received any
notification about the release of this long awaited DEIS. The Forest
Service itself has still failed to publish anything in the Federal
Register about the DEIS release on this major project--contrary to
years of prior practice.\5\ When asked, Tonto National Forest asserted
\6\ that the practice of USFS publishing any `Notices of Availability
of Draft Environmental Impact Statements' in the Federal Register had
ended in 2017--yet a quick search of the Federal Register.gov website
shows that at least six have been published by the USFS since that
\5\ See generally, listing of Notices of Availability of Draft
Environmental Impact Statements published by the U.S. Forest Service in
the Federal Register, https://www.federalregister.gov/documents/
\6\ Via email sent from Mary Rasmussen at TNF to Susan Montgomery,
counsel for ITAA, sent on September 13, 2019 at 2:15:33 PM MST.
ITAA's member tribes did not begin receiving mailed postcards from
TNF regarding this comment period until almost two weeks after the
start of the comment period--after almost 15 percent of the comment
period had already elapsed. Additionally, public notice pursuant the
``Resolution Copper Project and Land Exchange'' email listserv was not
delivered until August 13--three days after the comment period began
and less than 30 days before the first public hearing was scheduled to
Meanwhile, on September 9, 2019, the Army Corps of Engineers
released a Public Notice to collect public comments on Resolution
Copper Mine's application for a dredge-and-fill 404 permit. The
deadline for that comment period was also scheduled for November 7,
2019, further stretching ITAA's existing resources and those of other
interested stakeholders for preparing and submitting comments on this
project. Making matters worse, from ITAA's review of the matter, it
appears that no notice was ever received by any of ITAA's Member Tribes
from the Army Corps of Engineers regarding the initiation of their 404
comment period itself.\7\ To date, it appears that no Dear Tribal
Leader letters were received by any of ITAA's Member Tribes from the
Army Corps, and when asked about the plans for tribal consultation on
this comment period at the Tonto National Forest's public meeting in
Superior on September 10th, project officials indicated that the Corps
had no plan in place for initiating tribal consultation. Also, despite
having previously registered to receive public notifications via email
from the Army Corps of Engineers, no email notice was ever received
from the Army Corps of Engineers regarding initiation of this comment
period. For these reasons, the comment period for the CWA 404 permit
and the DEIS itself should be extended for at least an additional 90
\7\ See the following section IV(B) for additional discussion of
the Army Corps' tribal consultation and public notice failures.
B. UNLAWFUL RESTRICTIONS ON PUBLIC PARTICIPATION
In addition to these inadequate deliveries of public notice, the
restrictions placed on the submission options for public comments
raises serious concerns about the adequacy of public participation
under this process and of potential violations of procedural due
process. USFS regulations at 36 C.F.R. Sec. 219.4 state:
When developing opportunities for public participation, the
responsible official shall take into account the discrete and
diverse roles, jurisdictions, responsibilities, and skills of
interested and affected parties; the accessibility of the
process, opportunities, and information; and the cost, time,
and available staffing. The responsible official should be
proactive and use contemporary tools, such as the Internet, to
engage the public, and should share information in an open way
with interested parties. (emphasis added).
Here, the requirements set for in 36 C.F.R. Sec. 218.8(b) for
filing prohibits the incorporation of documents by reference, ``except
for the following list of items \8\ that may be referenced by including
date, page, and section of the cited document, along with a description
of its content and applicability to the objection. All other documents
must be included with the objection.'' (emphasis added). This
requirement, when combined with the arbitrarily small file size (20 MB)
accepted by the online portal provided to upload and submit comments,
effectively bars the electronic submission of comments due to the
extensive nature of all documents that must be included and,
consequently large file sizes that exceed 20 MB. Because electronic
submission is the most convenient submission method, these requirements
make the public participation process less accessible, which violates
USFS's regulations at 36 C.F.R. Sec. 219.4.
\8\ This list consists of (1) All or any part of a Federal law or
regulation; (2) Forest Service directives and land management plans;
(3) Documents referenced by the Forest Service in the proposed project
EA or EIS that is subject to objection, and (4) Comments previously
provided to the Forest Service by the objector during public
involvement opportunities for the proposed project where written
comments were requested by the responsible official. 36 C.F.R.
Additionally, these submission requirements have the greatest
impact on less technically sophisticated public participants who may be
unaware that their comments may not be considered due to failure to
comply with technical USFS regulations.\9\ These participants will
often fall into the categories that the USFS regulations specifically
direct the agency to engage, such as ``[y]outh, low-income, and
minority populations,'' and ``private landowners whose lands are in,
adjacent to, or otherwise affected by, or whose actions may impact,
future management actions in the plan area.'' 36 C.F.R.
Sec. 219.4(a)(1). In light of these serious deficiencies in the public
participation process, the DEIS comment period should be extended to
180 days, the restrictions on comment submission corrected, and
additional public meetings should be held in the Phoenix and Tucson
metro areas. Anything less violates NEPA.
\9\ During the scoping period in 2016, an email address was
provided for submitting comments. However, an email address is not
provided for commenting on the DEIS, further restricting the available
methods for public participation, contrary to the requirements
contemplated at 36 C.F.R. Sec. 219.4. TNF's decision to refuse to
provide an email address for comments eliminates the opportunity to
comment via one of the most commonly available communication methods in
the contemporary era. Moreover, we are concerned that individuals who
previously commented using the then existing USFS email address may
find out too late that this option is no longer available or they may
submit comments to this email address and, absent a bounce-back, may
never know that their comments were not received by TNF, further
violating 36 C.F.R. Sec. 219.4.
IV. THE U.S. ARMY CORPS OF ENGINEERS MUST DENY RESOLUTION COPPER'S
APPLICATION FOR A 404 PERMIT.
Section 404 of the Clean Water Act regulates the discharge of
dredged or fill materials into navigable waters. 33 U.S.C. Sec. 1344.
Resolution Copper submitted an application for a permit pursuant to
Sec. 404 of the Clean Water Act to discharge fill materials into
approximately 124 acres of ephemeral waters of the United States. Pub.
Notice/Application No.: SPL-2016-00547-MWL (Resolution Copper Mine
Tailings Storage Facility). According to the application, ``the
development of the TSF and its appurtenant infrastructure would result
in the permanent loss of the potential waters of the U.S. within the
footprints of these mine elements.'' (p. 1). This will occur through
the transport and storage of approximately 1.37 billion tons of toxic
mine tailings. Practicability Analysis in Support of Clean Water Act
404(B)(1) Alternatives Analysis at 3. Resolution Copper's 404 permit
application falls significantly short of the required conditions for
permit approval, for the following reasons.\10\
\10\ This section will also serve as the ITAA's official Comments
to the Department of the Army regarding Pub. Notice/Application No.:
SPL-2016-00547-MWL. ITAA's Comments on the DEIS are incorporated by
A. RESOLUTION COPPER HAS NOT OBTAINED A Sec. 401 CERTIFICATION.
As a precondition to issuance of a Sec. 404 permit, an applicant
must provide the Army Corps with a Sec. 401 certification. 33 U.S.C.
Sec. 1341(a) states, ``[a]ny applicant for a Federal license or permit
to conduct any activity including, but not limited to, the construction
or operation of facilities, which may result in any discharge into the
navigable waters, shall provide the licensing or permitting agency a
certification from the State in which the discharge originates or will
originate . . .'' Id. This certification, made by the state in which
the discharge originates, declares that the discharge will comply with
applicable provisions of the CWA, including state water quality
standards. This certification is also required pursuant to the Army
Corps' Guidelines at 40 C.F.R. Sec. 230.10(b)(1).
In the ``Mitigation and Monitoring Required by Other Regulatory and
Permitting Agencies,'' section of the DEIS, Resolution Copper states
that is has not yet obtained a Clean Water Act Section 401
Certification: ``Some of the other permits, licenses, and
authorizations that would be required for the mine to be operational
(and may include additional mitigations in addition to those noted
here) include . . . Clean Water Act Section 401 Certification.'' (DEIS
at J-24). Therefore, as a matter of law, the Army Corps must deny
Resolution Copper's application for a Sec. 404 permit.
On March 16, 2016, Resolution Copper submitted ``Resolution Copper
Mining, LLC Baseline Hydrologic and Geotechnical Data Gathering
Activities on Tonto National Forest--Application for Certification
under the Clean Water Action Section 401.'' Per Page 1 of the
Application Supplement (materials received from ADEQ via public records
request), this application is only for data gathering activities at
potential tailings storage site ``north and west of the town of
Superior in Pinal County,'' describing the rejected Alternative 2
tailings site only. Furthermore, via email sent from ADEQ on May 9,
2016: ``On April 25, 2016 Resolution Copper withdrew their application
for the CWA 401 certification therefore ADEQ will not be issuing a
certification on this project.'' To the best of our knowledge, this
application has never been resubmitted, and no other CWA 401
application has been submitted by Resolution Copper to date.
B. THE CORPS HAS FAILED TO MEET ITS CONSULTATION OBLIGATIONS.
In addition to the Comments here, see also Section VII(D) of these
Comments, which is fully incorporated by reference.
1. Government-to-Government Consultation
Government-to-government consultation by the U.S. Army Corps is
required by, among other things, the six USACE Tribal Policy
Principles, (dated February 18, 1998), as affirmed by the Memorandum
for Commanders, Directors, and Chiefs of Separate Offices, HQ USACE
(dated May 10, 2010), and as affirmed by the current U.S. Army Corps
Tribal Consultation Policy (dated November 1, 2012). This consultation
responsibility is also affirmed by Executive Order No. 13175
(Consultation and Coordination with Indian Tribal Governments dated
November 6, 2000, which requires all agencies, bureaus, and offices
within the Federal Government to establish regular and meaningful
consultation and collaboration with tribal officials in the development
of Federal policies that have tribal implications), and Presidential
Memorandum for the Heads of Executive Departments and Agencies on
Tribal Consultation dated November 5, 2009 (74 Fed. Reg. 57881), which
supplements Executive Order No. 13175.
The permit application states that, ``[t]he Corps will act as a
cooperating agency to this government-to-government consultation being
led by the USFS.'' However, consultation must be specific to the
Sec. 404 permit. Additionally, for the reasons discussed in Section
VII(D) of these Comments, the Tribal consultation conducted by the USFS
was also inadequate.
2. NHPA Sec. 106 Consultation
In addition, federal agencies are required to consult with tribes
when considering the effects of undertakings on historic properties
with tribal religious and cultural significance per the requirements of
the National Historic Preservation Act (NHPA) Section 106 (36 CFR 800),
National Park Service Bulletin No. 38 titled Guidelines for Evaluating
and Documenting Traditional Cultural Properties dated 1990 (as
revised), and Executive Order 13007 dated May 24, 1996 (requiring
agencies to adopt procedures to ``facilitate consultation with
appropriate Indian tribes'' related to agency actions on Federal lands
which may adversely affect sacred sites). The Army Corps Regulatory
Program's procedures for implementing Section 106 of the NHPA consist
of a regulation finalized in 1990, 33 CFR Part 325 (Appendix C),
guidance issued in 2005,\11\ and a memorandum issued in 2007.\12\
\11\ Army Corps of Engineers Directorate of Civil Works/Regulatory,
Revised Interim Guidance for Implementing Appendix C of 33 CFR Part 325
with the Revised Advisory Council on Historic Preservation Regulations
at 36 CFR Part 800 (Apr. 25, 2005).
\12\ Army Corps of Engineers CECW-CO, Clarification of Revised
Interim Guidance for Implementing Appendix C of 33 CFR Part 325 with
the Revised Advisory Council on Historic Preservation (ACHP)
Regulations at 36 CFR Part 800 dated 25 April 2005 (Jan. 31, 2007).
The NHPA expressly authorizes the Advisory Council on Historic
Preservation (ACHP) to issue regulations implementing section 106 ``in
its entirety.'' 54 U.S.C. Sec. 304108(a). In addition, the NHPA
requires agency procedures for compliance with section 106 to be
consistent with the ACHP regulations. 54 U.S.C. Sec. 306102(b)(5)(A).
Despite this, the Corps is currently implementing procedures through
Appendix C of its regulations that have not been approved by the ACHP
and may not be consistent with regulations developed by the ACHP for
implementing section 106 of the NHPA.\13\ See Comm. to Save Cleveland's
Huletts v. United States Army Corps of Eng'rs, 163 F. Supp. 2d 776, 792
(N.D. Ohio 2001) (noting that ``[a]ll parties agree that there is no
record of the ACHP ever approving or concurring in the Corps'
regulations''). Notably, the Army Corps Regulations at Appendix C and
associated Guidance allow for the delegation of Section 6 consultation
to third parties; however, this is inconsistent with the implementing
regulations of the ACHP. The Army Corps cannot meet its consultation
obligation pursuant to Sec. 106 while these unlawful inconsistencies
are being implemented.
\13\ 36 C.F.R. Sec. Sec. 800.3-800.13 (ACHP Implementing
Regulations); see also U.S. Government Accountability Office, Report to
Congressional Requesters: Tribal Consultation, Additional Federal
Actions Needed for Infrastructure Projects (Mar. 2019), https://
Further, the permit application recognizes that, ``the Project will
adversely impact cultural resources that are eligible for listing on
the National Register of Historic Places,'' and asserts that
``Consultation between USFS, Native American Tribes, and the State
Historic Preservation officer is currently occurring with respect to
cultural resources impacts associated with this project.'' It also
states that, ``Native American Tribes have also been consulted
regarding the presence of any traditional cultural properties that
could potentially be affected by this project.'' This is the only
information that Resolution Copper's permit application provides
regarding consultation, and it does not even reference the NHPA. For a
full discussion of the significant shortcomings of the tribal
consultation process, see Section VII(D) of these Comments. The
Programmatic Agreement, which Resolution Copper is solely relying on to
fulfill its consultation obligations, has yet to be finalized.
C. THE APPLICATION FAILS TO COMPLY WITH THE 404(B)(1) GUIDELINES.
The Clean Water Act and the implementing section 404(b)(1)
Guidelines dictate the circumstances under which the Corps may permit
discharges of dredged or fill material into wetlands or other waters.
See 40 C.F.R. Sec. 230. The Corps' own regulations recognize that the
Corps must deny a Section 404 permit if the discharge for which a
permit is sought would violate the Guidelines. 33 C.F.R.
Sec. 320.4(a)(1). Resolution Copper's proposed permit violates the
404(b)(1) Guidelines for the following reasons.
1. The Corps has Failed to Show the Proposed Project is the Least
Environmentally Damaging Practicable Alternative (40 C.F.R.
Under the Guidelines, the Corps must deny a Section 404 permit ``if
there is a practicable alternative to the proposed discharge which
would have less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse environmental
consequences.'' 40 C.F.R. Sec. 230.10(a). An alternative is practicable
``if it is available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
overall project purpose.'' 40 C.F.R. Sec. 230.10(a)(2). Practicable
alternatives include activities and discharges which do not involve
discharge of dredged/fill material into waters of the U.S. 40 C.F.R.
The Practicability Analysis in Support of Clean Water Act 404(B)(1)
Alternatives Analysis is included as Appendix C of the DEIS. However,
the analysis included is only a draft, and has not yet been finalized.
It states, ``[o]nce finalized, the Corps will use this practicability
analysis to complete its 404(b)(1) alternatives analysis, which will be
used in the Corps permitting decision-making process.'' (p. 2). A full
analysis should have been completed for inclusion in the DEIS for
public comment, especially given the mandate (discussed in detail
above) that this DEIS serves as the sole basis for all decisions under
Federal law. The analysis of alternatives in Appendix C and in other
sections of the DEIS is inadequate. See Section VI(C) of these
Comments, which is fully incorporated here by reference, for a full
discussion of the alternatives. Notably, there was inadequate
consideration of the No Action Alternative.
2. Resolution Copper has failed to engage in Section 7 Consultation
pursuant to the Endangered Species Act (40 C.F.R.
The Army Corp's 404(b)(1) Guidelines prohibit the discharge of
dredged or fill material if the discharge, ``[j]eopardizes the
continued existence of species listed as endangered or threatened under
the Endangered Species Act of 1973, as amended,'' or ``results in
likelihood of the destruction or adverse modification of a habitat
which is determined by the Secretary of Interior or Commerce, as
appropriate, to be a critical habitat under the Endangered Species Act
of 1973, as amended.'' 40 C.F.R. Sec. 230.10(b)(3). Pursuant to this
section of the Guidelines, the permit application Public Notice states
that consultation under Section 7 of the Endangered Species Act is
required ``at this time.'' Pub. Notice/Application No.: SPL-2016-00547-
MWL at 4. It is clear that Section 7 consultation is required as a pre-
condition to issuance of a Sec. 404 permit.
Despite this clear requirement, Resolution Copper proceeded with
submitting a Sec. 404 permit application before it even initiated
Section 7 consultation. The DEIS states that, ``[t]he Tonto National
Forest will begin consultation with the [Fish and Wildlife Service]
regarding species protected under Section 7 of the ESA once a preferred
alternative is identified.'' (Section 22.214.171.124 DEIS). Thus, it appears
that Section 7 consultation has not yet occurred, and therefore the
Army Corps must deny the Sec. 404 permit application at this time.
3. The Resolution Copper Mine Project will Cause or Contribute to
Significant Degradation (40 C.F.R. Sec. 230.10(c)).
The 404(b)(1) Guidelines prohibit the Army Corps from issuing
permits that will ``cause or contribute to significant degradation of
the waters of the United States.'' 404. C.F.R. Sec. 230.10(c). This may
(1) Significantly adverse effects of the discharge of pollutants on
human health or welfare, including but not limited to
effects on municipal water supplies, plankton, fish,
shellfish, wildlife, and special aquatic sites.
(2) Significantly adverse effects of the discharge of pollutants on
life stages of aquatic life and other wildlife dependent on
aquatic ecosystems, including the transfer, concentration,
and spread of pollutants or their byproducts outside of the
disposal site through biological, physical, and chemical
(3) Significantly adverse effects of the discharge of pollutants on
aquatic ecosystem diversity, productivity, and stability.
Such effects may include, but are not limited to, loss of
fish and wildlife habitat or loss of the capacity of a
wetland to assimilate nutrients, purify water, or reduce
wave energy; or
(4) Significantly adverse effects of discharge of pollutants on
recreational, aesthetic, and economic values. Id.
Moreover, the Corps is required to analyze secondary effects,
defined by the Guidelines as ``effects on the aquatic ecosystem that
are associated with the discharge of dredged or fill materials, but do
not result from the actual placement of the dredged or fill material.''
40 C.F.R. Sec. 230.11(h). The consideration of secondary effects is
necessary for the Guidelines analysis.
Cumulative Effects Could Result in Significant Degradation of Waters of
To issue a 404 permit, the Corps must ``collect information and
solicit information from other sources about the cumulative impacts on
the aquatic ecosystem'' and consider this information ``during the
decision-making process concerning the evaluation of individual permit
applications.'' 40 C.F.R. Sec. 230.11(g)(2). Here, although ``the
development of the TSF and its appurtenant infrastructure would result
in the permanent loss of the potential waters of the U.S. within the
footprints of these mine elements,'' Pub. Notice/Application No.: SPL-
2016-00547-MWL at 1 (emphasis added), the Corps has failed to assess
the cumulative effects of the Resolution Copper Mine. Cumulative
effects include, but are not limited to impacts to eagles, eagle
habitat, and other migratory birds, impacts to historic properties and
TCP's, availability of water resources in a time of increasing water
scarcity, and impacts to groundwater resources. A full discussion of
these issues and why the DEIS fails to consider cumulative impacts
associated with them can be found in the Effects Analysis section of
these Comments at VII(E), which are fully incorporated here by
Secondary Effects Have Not Been Adequately Assessed
The permit application also states that ``[i]ndirect impacts from
the dewatering of down-gradient drainages may result in the form of
changes to aquatic functions and values for the affected drainages but
the magnitude of these impacts have not yet been estimated.'' Pub.
Notice/Application No.: SPL-2016-00547-MWL at 1. Secondary effects such
as these, including ``the loss of the structure and aquatic function of
. . . ephemeral drainages,'' (Practicability Analysis p. 35) must be
fully considered before a permit can be issued. Other potential
secondary effects must be identified and fully analyzed by the Army
Corps before a permit may be issued. These failures violate the law.
4. The Proposed Project Fails to Take Appropriate and Practicable
Steps to Avoid, Minimize, and Compensate Potential Adverse
Effects (40 C.F.R. Sec. 230.10(d)).
Pursuant to the 404(b)(1) Guidelines, ``the district engineer may
determine that a permit cannot be issued because of the lack of
appropriate and practicable compensatory mitigation options.'' 33
C.F.R. Sec. 332.1(c)(3). The 1990 Memorandum of Agreement (MOA) between
EPA and the Corps \14\ established a three-part process, known as the
mitigation sequence, to help guide mitigation decisions and determine
the type and level of mitigation required under Clean Water Act Section
\14\ Memorandum of Agreement Between the EPA and Dep't of the Army
Concerning the Determination of Mitigation Under the Clean Water Act
Section 404(B)(1) Guidelines (Feb. 6, 1990), https://www.epa.gov/sites/
Step 1. Avoid--Adverse impacts to aquatic resources are to
be avoided and no discharge shall be permitted if there is
a practicable alternative with less adverse impact.
Step 2. Minimize--If impacts cannot be avoided,
appropriate and practicable steps to minimize adverse
impacts must be taken.
Step 3. Compensate--Appropriate and practicable
compensatory mitigation is required for unavoidable adverse
impacts which remain. The amount and quality of
compensatory mitigation may not substitute for avoiding and
minimizing impacts. Id.
With regard to Step 3, the Army Corps published the Final 2015
Regional Compensatory Mitigation and Monitoring Guidelines to
standardize mitigation requirements. These Guidelines require the Corps
to use a watershed plan or watershed approach to develop compensatory
The ultimate goal of the watershed approach is to maintain and
improve the quality and quantity of aquatic resources within
watersheds through strategic selection of compensatory
mitigation sites. It is expected that the use of a watershed
approach will result in ecologically successful compensatory
mitigation that more effectively offsets losses of aquatic
resource functions and services. In undertaking the watershed
approach, the Corps will consider watershed needs and how the
location of compensatory mitigation sites would address those
needs. The type of aquatic resource proposed for compensatory
mitigation should be ecologically suitable to the location and
complement the diversity (including spatial distribution) of
aquatic resources in a project watershed (or alternatively:
ecoregion, physiographic province, or other geographic area of
interest). These considerations will include evaluation of the
appropriate size watershed (e.g. Hydrologic Unit Code (HUC) 8
versus HUC 10 or 12 subdivisions, or the use of topographic
watersheds) depending on the project size, type, and level of
project impacts. (p. 11-12).
Further, the Army Corps is required to adhere to the following
preference hierarchy for compensatory mitigation: (1) mitigation banks,
(2) in-lieu fee programs, and (3) permittee-responsible mitigation in
consideration of a watershed approach. (p. 11).
The proposed mitigation and description of the steps required by
the above regulations is woefully inadequate. For the ``Avoidance/
Minimization'' step, only a few paragraphs of information are provided
between the permit application and a short section in the Conceptual
Compensatory Mitigation Plan, included as Appendix D to the DEIS. In
order for this aspect of the analysis required pursuant to 33 C.F.R.
Sec. 332.1(c)(3) to be sufficient, significantly more information about
the project is required. As part of its review of the permit
application, the Corps should fully describe all the construction and
design best management practices for all of the project's components
and how these practices and designs minimize impacts. Although the
Compensatory Mitigation Plan states that ``an exhaustive evaluation of
TSF alternatives was completed by the USFS and cooperating agencies,
including the Corps,'' this evaluation should be done specifically for
the project components implicated by the Sec. 404 permit application.
See Section VII(C) of these Comments for a full discussion of why the
DEIS evaluation of alternatives is inadequate.
In addition, the Conceptual Compensatory Mitigation Plan is
deficient for the following reasons:
On page 5, the Plan begins laying out the ten steps of the
Mitigation Ratio-Setting Checklist (MRSC). However, it only
lays out two steps. Full analysis of all ten steps is
required pursuant to the South Pacific Division's Standard
Operating Procedure for the Determination of Mitigation
\15\ See U.S. Army Corps of Eng'rs, Regulatory Program Standard
Operating Procedure for Determination of Mitigation Ratios (Jan. 11,
For the analysis of Step 2 on page 5, the full evaluation
of the 11 functions identified in Table 1 should be
published and available for public comment with the DEIS.
This section of the analysis is thus incomplete. Further,
factors from the list of assessed functions such as
``Presence of Fish Habitat and Structure'' should not be
removed unless a full analysis is provided to demonstrate
that there is no fish habitat at a particular ephemeral
aquatic riparian habitat.
The Plan does not discuss whether the Army Corps utilized
a watershed plan or watershed approach, one of which is
The plan does not include any analysis discussing how the
five Mitigation Opportunities were selected, or an analysis
of how the required preference hierarchy was adhered to.
This analysis must be included in the permit application in
order to assess the effectiveness of the proposed
The Plan states that the ``details of the site-protection
instruments to be recorded at these mitigation sites have
not been finalized at this time.'' (p. 20-21). The long-
term site protection instruments must be finalized as part
of the permit application.
Further, the Conceptual Compensatory Mitigation Plan emphasizes
that ``[t]he aquatic resources at all of the TSF alternatives carried
forward for evaluation in the DEIS and the practicability analysis are
comprised almost entirely of ephemeral washes.'' Conceptual
Compensatory Mitigation Plan at 4. However, ephemeral aquatic resources
are crucial to the ecological health of arid environments and require
analysis and protection that is as stringent as that provided for
\16\ See EPA, The Ecological and Hydrological Significance of
Ephemeral and Intermittent Streams in the Arid and Semi-Arid American
Southwest at 88 (Nov. 2008), https://www.epa.gov/sites/production/
D. THE 404 PERMIT WOULD BE CONTRARY TO THE PUBLIC INTEREST.
The Public Interest Review is crucial to examining the cumulative
impacts of a proposed permit. 33 C.F.R. Sec. 320.4(a)(1). The public
interest review is based on a range of factors, calling for the
weighing of proposed impacts against the potential benefits of the
proposed activity. The Corps issues a permit only if it concludes that
the project is in the public interest. Id.
The public interest review is a balancing test of factors that
impact the cumulative effects, which may include ``conservation,
economics, aesthetics, general environmental concerns, wetlands,
historic properties, fish and wildlife values, flood hazards,
floodplain values, land use, navigation, shore erosion, recreation,
water supply and conservation, water quality, energy needs, safety,
mineral needs, considerations of property ownership and, in general,
the needs and welfare of the people.'' Id. Sec. (a)(1). Under 33 C.F.R.
Sec. 320.4(a)(2), the Corps must include the following factors in its
public interest analysis:
(i) The relative extent of the public and private need for the
proposed structure or work;
(ii) Where there are unresolved conflicts as to resource use, the
practicability of using reasonable alternative locations
and methods to accomplish the objective of the proposed
structure or work; and
(iii) The extent and permanence of the beneficial and/or detrimental
effects which the proposed structure or work is likely to
have on the public and private uses to which the area is
Here, the Army Corps states in Resolution Copper's Permit
Application Public Notice that it has not yet conducted a public
interest review, but rather, is currently ``soliciting comments from
the public; Federal, state, and local agencies and officials; Indian
tribes; and other interested parties in order to consider and evaluate
the impacts of this proposed activity.'' Pub. Notice/Application No.:
SPL-2016-00547-MWL at 3. These comments will then be used to assess the
public interest factors above. Because the Army Corps has not yet
initiated the public interest review as required by 33 C.F.R.
Sec. 320.4(a)(1), it may not issue a Sec. 404 permit. The ITAA
officially requests an opportunity to review the Army Corps draft
Public Interest Determination once it is complete, before a final
permit determination is made. Again, Sec. 3003(c)(9)(B) of P.L. 113-291
requires, in part, that the single EIS ``shall be used as the basis for
all decisions under Federal law related to the proposed mine.'' The
decision by the Corp to punt this matter until a future date is not
permitted by the NDAA or NEPA, among other authorities.
The Corps regulations direct that ``full consideration and
appropriate weight will be given to all comments, including those of
federal, state, and local agencies, and other experts on matters within
their expertise.'' 33 C.F.R. Sec. 320.4(a)(3). Thus, upon consideration
of the public interest factors as described below, based on the ITAA's
experience based on more than a decade of being engaged in the public
debate over the proposed Resolution Copper Mine Project and its
expertise advocating for Tribal governments in the state of Arizona, it
is ITAA's opinion that the proposed Resolution Copper Mine Project is
contrary to the public interest and should not be permitted.
The project would result in massive, irreversible, and negative
impacts on the environment, surrounding community, religious, cultural,
traditional and spiritual practices of the affected member of the San
Carlos Apache Tribe and other ITAA Member Tribes. The basis of this
project is the privatization of federal public land in order to make a
profit for an international corporation at the expense of the health
and welfare of the local environment and communities and the religious
freedoms of Native American Tribes. No mitigation measures or permit
conditions can be sufficiently implemented to lessen the negative
impacts of the proposed Resolution Copper Mine in order to warrant a
finding that the project would be in the public interest. Therefore,
Resolution Copper's permit application must be denied. For additional
discussion of factors considered in the public interest review, see the
Effects Analysis section of these Comments at VII(E), which are fully
incorporated here by reference.
E. THE 404 PERMIT MUST BE DENIED FOR LACK OF SUFFICIENT INFORMATION
AND PUBLIC NOTICE.
One of the fundamental congressional goals and policy in enacting
the CWA is to ensure full public participation in Corps and EPA
permitting decisions: ``Public participation in the development,
revision, and enforcement of any regulation, standard, effluent
limitation, plan, or program . . . shall be provided for, encouraged,
and assisted by the Administrator and the States.'' 33 U.S.C.
Sec. 1251(e). In line with Congress' goals and policy, the Corps'
regulations require that all proposed discharges be subject to ``public
review and comment.'' 33 C.F.R. Sec. Sec. 325.2(a) & (d); 33 C.F.R.
Sec. 325.3; 33 C.F.R. Sec. 332.4(b) (public review and comment on
compensatory mitigation plans). ``Public notice is the primary method
of advising interested parties of the proposed activity for which a
permit is sought, and of soliciting comments and information necessary
to evaluate the probable impact on the public interest. The notice
must, therefore, include sufficient information to give a clear
understanding of the nature and magnitude of the activity to generate
meaningful comment.'' 33 C.F.R. Sec. 325.3(a) (emphasis added).
Consistent with this Congressional intent, the 404(b)(1) Guidelines
prohibit issuance of a permit where ``[t]here does not exist sufficient
information to make a reasonable judgment as to whether the proposed
discharge will comply with these Guidelines.'' 40 C.F.R.
Sec. 230.12(a)(3)(iv). In addition, under the Corps regulations, when a
project is so speculative that alternatives and avoidance and
minimization cannot be meaningfully addressed, the application may be
considered incomplete. 33 C.F.R. Sec. 325.3(a). Here, Resolution
Copper's permit application is missing so many key elements needed for
review, the public has been effectively denied their lawful opportunity
to fully consider and comment on it. Further, because the Army Corps is
relying on the DEIS to satisfy its NEPA obligations and information
about 404 permitting is included throughout the DEIS, the public is
also being denied the opportunity to comment on a complete DEIS.
Resolution Copper's permit application is missing the following crucial
Section 7 ESA Consultation pursuant to 40 C.F.R.
Section 401 Certification pursuant to 33 U.S.C.
Public Interest Review pursuant to 33 C.F.R.
A Complete Practicability Analysis pursuant to 40 C.F.R.
A Complete Compensatory Mitigation Plan pursuant to 40
C.F.R. Sec. 230.10(d), allowing for public comment pursuant
to 33 C.F.R. Sec. 332.4(b);
A Complete Programmatic Agreement for purposes of
fulfilling federal Tribal consultation requirements; and
A jurisdictional determination (See Practicability
Analysis, DEIS Appendix C, p. 27-28 28).
Additionally, the Army Corps should have conducted a full analysis
of the potential impacts of Arizona's proposed assumption of the CWA
404 Permit Program \17\ and potential changes to the WOTUS Rule. The
Practicability Analysis in Appendix C of the DEIS recognizes that the
definition of WOTUS is uncertain. However, instead of fully assessing
the impacts of these ongoing regulatory changes, the analysis instead
``focuses more broadly,'' (p. 28) without any detailed analysis.
Without a full assessment of these regulatory uncertainties and a final
jurisdictional determination, a 404 permit may not be issued.
\17\ See ADEQ, Clean Water Act Sec. 404 Assumption (Oct. 23, 2019),
V. THE TONTO NATIONAL FOREST MUST PLACE THE DEIS PROCESS ON HOLD AND
REVISIT ITS WORK ON THE DRAFT ENVIRONMENTAL IMPACT STATEMENT.
ITAA acknowledges the fact that the TNF has expended significant
effort to produce this DEIS. However, for reasons discussed throughout
these comments, as well as reasons raised by other commenters on this
project, the DEIS is inadequate, incomplete, and fails to comply with
the requirements of NEPA. Although it is a large and multi-year
product, a closer look at the DEIS reveals that it is quite flimsy
overall, with glaring omissions and failures throughout. This does not
meet the key standards of NEPA (see, e.g., 40 C.F.R. Sec. 1502.14).
Indeed, these failures become evident before the reader even progresses
past the Executive Summary.
A. THE DEIS FAILS TO MEET THE REQUIREMENTS OF 40 C.F.R. Sec. 1502.14.
40 C.F.R. Sec. 1502.14 Alternatives including the proposed actions
sets forth the ``heart'' of the EIS. ``Based on the information and
analysis presented in the sections on the Affected Environment
(Sec. 1502.15) and the Environmental Consequences (Sec. 1502.16), it
should present the environmental impacts of the proposal and the
alternatives in comparative form, thus sharply defining the issues and
providing a clear basis for choice among options by the decisionmaker
and the public.'' Sec. 1502.14. For reasons described herein, the DEIS
in this case fails to meet nearly every single one of these criteria:
``(a) Rigorously explore and objectively evaluate all
reasonable alternatives, and for alternatives which were
eliminated from detailed study, briefly discuss the reasons for
their having been eliminated.'' This has not been done. See
Section VII below.
``(b) Devote substantial treatment to each alternative
considered in detail including the proposed action so that
reviewers may evaluate their comparative merits.'' This has not
been done. See Section VII below.
``(c) Include reasonable alternatives not within the
jurisdiction of the lead agency.'' This has not been done. See
Section VII below.
``(d) Include the alternative of no action.'' Analysis of the
no action alternative is dismissed nearly outright in the DEIS.
See Section VII below.
``(e) Identify the agency's preferred alternative or
alternatives, if one or more exists, in the draft statement and
identify such alternative in the final statement unless another
law prohibits the expression of such a preference.'' This basic
requirement, at least, appears to have been met.
``(f) Include appropriate mitigation measures not already
included in the proposed action or alternatives.'' Discussion
of mitigation measures is substantially inadequate. See Section
B. THE DEIS FAILS TO MEET THE REQUIREMENTS OF 40 C.F.R. Sec. 1502.15.
40 C.F.R. Sec. 1502.15 Affected environment requires:
The environmental impact statement shall succinctly describe
the environment of the area(s) to be affected or created by the
alternatives under consideration. The descriptions shall be no
longer than is necessary to understand the effects of the
alternatives. Data and analyses in a statement shall be
commensurate with the importance of the impact, with less
important material summarized, consolidated, or simply
referenced. Agencies shall avoid useless bulk in statements and
shall concentrate effort and attention on important issues.
Verbose descriptions of the affected environment are themselves
no measure of the adequacy of an environmental impact
The DEIS fails to meet this requirement, and a review of its
contents fails to ``succinctly describe'' the environment to be
affected or created by the alternatives. Matters raised in scoping are
unaddressed, data and analysis is nowhere near the level required for
this massive and unprecedent project, issues are not given full or even
adequate consideration as part of baseline analysis, which separately
and collectively fails to provide a complete picture of the affected
For example, many material issues raised during the scoping period
(which had NOT been dismissed from consideration per Table G-1 of the
Final Summary of Issues Identified Through Scoping Process published
November 2017) are still missing from the DEIS. For example, critical
information requested by SWCA in their preparation of this DEIS (such
as details on the Drought Contingency Plan as a reasonably foreseeable
action and necessary for analyzing water withdrawal impacts in Pinal
County) has still been omitted from the document.\18\ The impacts from
water use are still not meaningfully analyzed, despite having been
raised during scoping. Impacts from the power infrastructure
requirements are not analyzed in this DEIS, despite also having been
raised during scoping and being required for consideration as a
connected action under NEPA and under the unique terms of the NDAA.
\18\ Information provided via email from attorney J.Tomkus to
C.Coyle of SWCA on April 2, 2019.
Attempts to research and understand the sources of the statements
and conclusions in the DEIS by review of the cited supporting
documentation (when a citation is given at all) are met with severe
disappointment and frustration. As discussed herein, certain heavily
relied-upon sources do not appear to even be included in the list of
documentation on the project website (for example, the DEIS relies
heavily on Newell & Garrett 2018d throughout the Water Resources
chapter, but no such document with this citation appears to be posted
on the project website). Careful review of sources cited in support of
a statement in the DEIS too often reveal that those sources did not
support or even mention the specific matter in that statement. In
addition, attempts to navigate to and review specific points of
interest within the document could not be accomplished due to the
incomplete nature of the document. Conclusions on major issues of
concern such as water modeling are actually incomplete (p. 363 DEIS),
maps show only portions of analysis areas such as on the Desert
Wellfield water model (p. 298 DEIS), key figures such as ones showing
groundwater systems contain no scale depth or distance (p. 305 DEIS),
along with other inexcusable failures in the document in violation of
standards for the preparation of a DEIS under NEPA.
Other problems with the grossly incomplete nature of the DEIS,
include the fact that the Table of Contents appearing first at Volume I
(p. i-xiv), then at Volume II (p. i-xv) contain different listed
contents. This creates confusion in navigating through the document and
indicates that the document, in its un-finalized and inadequate form
(in addition to being materially inadequate for the many reasons
discussed herein) was not fully and properly edited or reviewed prior
to completion. This conclusion is further supported by the appearance
of unfinished editing comments throughout the DEIS such as ``We are
doing it. LOL.'' (p. 310), as well as the existence of a completely
unfinished section (DEIS p. 363) where conclusions as to the
reasonableness of water models is left off mid-sentence. These things
are more than just a failure to proofread the final DEIS, they reflect
the gross lack of care and consideration on the part of the TNF that is
normally required by NEPA and other federal laws for such an important
and consequential project.
C. THE DEIS FAILS TO MEET THE REQUIREMENTS OF 40 C.F.R. Sec. 1502.16.
40 C.F.R. Sec. 1502.16 Environmental Consequences sets forth a list
of required discussions that are intended to form the ``scientific and
analytic basis for comparisons.'' In many instances throughout this
DEIS, as discussed herein, these required discussions are incorrect,
inadequate, or missing.
As discussed throughout this comment letter, TNF failed to consider
``direct effects'' and ``indirect effects'' and their significance in
the DEIS, including with regard to a whole host of major issues such as
the direct effect of the various project components on raptors, eagles
and other species, the direct environmental effects of dewatering on
local water availability, potential ground subsidence, Tribal cultural
resources and Tribal religious and traditional practices, and on
surrounding economics of the regions, including landowners and their
wells, in addition to long-term environmental effects. See Section
The DEIS failed to consider possible conflicts between the project
and Federal, regional, State, and local land use plans, policies, and
controls as required by 40 C.F.R. Sec. 1502.16, as evidenced in part by
the failure to consider conflicts between project water usage and
local, statewide, and regional drought planning measures.
As discussed further herein, the DEIS has failed in its requirement
to analyze environmental effects of alternatives as required by 40
C.F.R. Sec. 1502.16. For reasons described at Section VII(E)(7) and
throughout these comments, the analysis of the environmental impacts in
this DEIS is extremely inadequate, and the DEIS fails to meet the
Sec. 1502.16 criteria outlined above. This DEIS contains no meaningful
discussion or detail on the cumulative effects of the various aspects
of this proposed project. Furthermore, the DEIS contains considerable
quantification of benefits but no quantification of adverse effects.
This unbalanced commentary is not helpful to the public in trying to
provide useful public comment, nor is it helpful to TNF in trying to
make a credible analysis of this project and its alternatives as
required by NEPA.
As discussed herein and at Section VII(E)(6), meaningful
consideration of energy requirements and conservation potential of
various alternatives and mitigation measures required by 40 C.F.R.
Sec. 1502.16(e) have not been done. ``Natural or depletable resource
requirements and conservation potential of various alternatives and
mitigation measures'' required by 40 C.F.R. Sec. 1502.16(f) are also
(g) Urban quality, historic and cultural resources, and the
design of the built environment, including the reuse and
conservation potential of various alternatives and mitigation
(h) Means to mitigate adverse environmental impacts (if not
fully covered under Sec. 1502.14(f)).
The DEIS fails to meet these requirements of 40 C.F.R.
The current, USFS-preferred Alternative 6 tailings site at Skunk
Camp was has never been the subject of public scoping. The 120-day
scoping period for this project, which ended on July 18, 2016, did not
include the Skunk Camp tailings location. This alternative was not
introduced to the public until August 2018, after the scoping period
had ended and after the Scoping Report was published. The Skunk Camp
tailings site is also notably absent from the 2017 Alternatives
Evaluation Report. Alternative workshops and presentations through 2017
stated affirmatively that ``[t]ailings disposal is proposed to take
place approximately 5 miles northwest of Superior''.\19\ This means
that public comment on this alternative (including any parties which
may be impacted) was neither solicited nor received by the TNF. This
violates public participation and other requirements of NEPA.
\19\ U.S. Dep't of Agriculture, USFS, TNF, Notice of Public
Workshop on Resolution Copper Project and Land Exchange EIS (last
visited Nov. 4, 2019), https://www.resolutionmineeis.us/sites/default/
In addition to outright missing information, poor/missing/
inadequate citations, and lack of discussion of cumulative effects,
there is also a significant amount of inaccurate and/or incomplete
information throughout this DEIS. In many places, critical information,
explanations, methodologies, and analysis are simply not provided. In
addition, the DEIS is self-contradictory in several places. These
omissions result in a DEIS which does not meet the requirements of NEPA
as it fails to include full and transparent disclosure of issues so
that the public can credibly comment on the proposal. Taken together,
these issues cumulatively reflect a DEIS that is severely deficient and
lacking in the necessary rigor and objectivity required by NEPA. The
only legal recourse is for TNF to return to the drawing board and
correct and complete the DEIS in conformance with law.
VI. THE PROJECT VIOLATES THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT
(AIRFA) AND THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA).
The American Indian Religious Freedom Restoration Act (AIRFA)
states, ``it shall be the policy of the United States to protect and
preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the
American Indian, Eskimo, Aleut, and Native Hawaiians . . . .'' 42
U.S.C. Sec. 1996. These protections extend to the ability to access
sacred sites, the use and possession of sacred objects, and the freedom
to worship through traditional ceremonies or rites. Id. In addition to
AIRFA, Executive Order 13007 of 1996 seeks to further protect and
preserve Indian religious practices. It directs agencies to ``(1)
accommodate access to and ceremonial use of Indian sacred sites by
Indian religious practitioners and (2) avoid adversely affecting the
physical integrity of such sacred sites. Where appropriate, agencies
shall maintain the confidentiality of sacred sites.'' Id.
The Religious Freedom Restoration Act (RFRA) recognizes that even
``laws neutral toward religion may burden religious exercise as surely
as laws intended to interfere with religious exercise,'' and that
``governments should not substantially burden religious exercise
without compelling justification.'' 42 U.S.C. Sec. 2000bb(a) (internal
quotations omitted). There are two required elements to establish a
claim under RFRA: (1) the actions alleged to be burdened by the
government must be an ``exercise of religion,'' and, (2) the government
must ``substantially burden'' the plaintiff's exercise of religion. 42
U.S.C. Sec. 2000bb-1(a). If the plaintiff successfully establishes that
the government action placed a substantial burden on their exercise of
religion, the burden shifts to the government to show that the burden
was in the furtherance of a compelling interest and is being
implemented by ``the least restrictive means.'' Id. at Sec. 2000bb-
In considering whether a compelling state interest justifies the
substantial burden of religious exercise, the Supreme Court held ``[i]t
is basic that no showing merely of a rational relationship to some
colorable state interest would suffice'' Sherbert v. Verner, 374 U.S.
398, 406. Government interests such as the extraction of mineral
resources, job creation, and economic growth are not compelling enough
to justify the total and permanent destruction of Oak Flat, and with
it, the religious freedoms of those tribal members whose religious
practices are directly tied to this sacred place. Thus, the land
exchange and the mining activities to be conducted at this place are
unlawful. The current NEPA process cannot move forward until these
impacts are fully assessed and avoided.
The passage of the Southeast Arizona Land Exchange and Conservation
Act (National Defense Authorization Act Sec. 3003, P.L. 113-291) places
a permanent, irreparable, and substantial burden on the exercise of the
sincerely held religious beliefs of the tribal members for the San
Carlos Apache Tribe--one of the ITAA's Member Tribes--who are tied to
the Oak Flat area. The government cannot meet the compelling interest
test and has not implemented the Act through the least restrictive
means. Thus, the land exchange and mining activities authorized in the
NDAA and pursuant to this NEPA process are unlawful.
The Arizona tribes, including Apache and Yavapai, have lived in and
used this area since time immemorial as an integral part of certain
tribal religious ceremonies and actions and to gather culturally
significant plants and related materials. Much of this is well
documented by Arizona's Member Tribes through their statements about
this project, and in the various cultural resource surveys,
ethnographic work and other documentation prepared or gathered by the
TNF over the years. In short, the tribes' religious, historical, and
cultural connection to the entire Oak Flat area, including its water
features, plants and animals, and other physical landmarks is
Transferring the Oak Flat area into the private ownership for
mining and eventual destruction creates pressures on tribes to alter
the foundation of their religious practices by ceasing access to the
Oak Flat area. Without access to the land, many important religious
materials only found or grown in the Oak Flat area will be erased from
the religion. Once transferred, the land would become private property.
Tribal members attempting to access this private property to conduct
religious activities may risk criminal trespass charges. A second more
severe threat would be the risks to life, health and physical safety
that would come from trying to access land that that is subject to
significant subsidence once the current form of mining activity (vs.
other alternative mining techniques not considered in the DEIS) begins.
Indeed, Resolution Copper may not be able to control or predict areas
of subsidence with much accuracy. Even accessing supposed ``safe''
areas may still be unsafe. The DEIS fails to analyze any of these
aspects of the land exchange, the proposed mine, or those potentially
less destructive mining technics, relative to AIRFA and RFRA, in
violation of law.
VII. DISCUSSION OF ADDITIONAL ISSUES AND FAILURES UNDER NEPA
A. INADEQUATE STATEMENT OF PURPOSE AND NEED
The purpose and need statement contained in the DEIS is far too
narrow to suffice as an adequate purpose and need statement for the
public's review and comment. The statement that TNF is required to
``respond to parties who submit proposed plans to conduct mining
operations on or otherwise use NFS lands in conjunction with mining for
part or all of their planned actions'' (DEIS p.ES-5) reduces the
purpose and need to a description of the administrative
responsibilities of that agency. Essentially, it says that the TNF is
required to respond to their ``inbox.'' This falls far short of what is
required by NEPA.
The ``purpose and need'' section asserts a ``twofold'' purpose and
need of the mine and the land exchange, without providing detail as to
why the two connected actions are separated (DEIS p. ES-5). It is also
unclear what is meant to be included or excluded by ``reasonably
incident'' as used in the statement of ``reasonably incident to
extraction, transportation, and processing of copper and molybdenum.''
This statement fails to describe the purpose and need of the actual
proposed project in this region of Arizona. First, the DEIS needs to be
redone for reasons described herein. If and when that threshold
determination is made, a new purpose and need discussion should include
an analysis of how the development of these mineral deposits contribute
to a need for copper in the United States, particularly in light of
publicly available information stating that a significant percentage of
the copper concentrates will be transported out of the United States.
In light of that fact, the DEIS should also discuss whether development
of these copper deposits actually support ``domestic mining, minerals,
and metal and mineral reclamation industries'' or whether they are best
left in reserve for domestic use--or--whether mining is incompatible
with the current existing uses of the area.
B. THE DEIS IS BASED ON INCORRECT AND UNSUPPORTABLE ASSUMPTIONS AND
POSITIONS REGARDING RESOLUTION COPPER'S ALLEGED ENTITLEMENT TO
HAVE THIS PROJECT APPROVED UNDER THE MINING LAW.
Improper Interpretation of the ``No Action Alternative''
The DEIS (p. ES-10) states that while the no action alternative is
required by regulation, ``this alternative cannot be selected by the
Forest Service.'' The DEIS (p. ES-10) further cites the Notice of
Intent published March 2016: ``The EIS will analyze the no action
alternative, which would neither approve the proposed GPO nor complete
the land exchange. However, the responsible official--the Forest
Supervisor, Tonto National Forest--does not have the discretion to
select the no action alternative.'' The DEIS (p. 67) also states that
``the Forest Service is unable to refuse approval of the GPO within
their regulations and guidance.'' Thus, the DEIS is based on the
misguided belief that, since the company has filed mining claims,
Resolution Copper has some inalienable right to conduct all of its mine
This belief is inherently inaccurate, as controlling caselaw has
well-established that TNF has the authority and responsibility to
regulate the use of Forest Service lands and where mining activities
disturb these lands, the Forest Service may regulate the mining
activities and activities incidental to mining to, among other things,
prohibit unreasonable destruction of surface features and resources,
including by limiting the permissible methods of mining in order to
reduce environmental damage, even if this will result in increased
operating costs for the mine. See Clouser v. Espy, 42 F.3d 1522, 1528-
29 (9th Cir. 1994) (``there can be no doubt that the Department of
Agriculture possesses statutory authority to regulate activities
related to mining--even in non-wilderness areas--in order to preserve
the national forests.''); see also Public Lands for the People, Inc. v.
US. Dep't of Agriculture, 697 F.3d 1192, 1197-98 (2013 (9th Cir. 2012)
(``The 1872 Mining Law does not strip the U.S. Forest Service of its
authority to limit methods of mining or activities incidental to
mining. Forest Service may prohibit the use of motor vehicles to access
mining claims due to impacts on quiet recreation opportunities,
wildlife, water quality, air quality and other Forest Service
resources''); see also Kuruk Tribe of Cal. v US. Forest Service, 681
F.3d 1006, 1023 (9th Cir. 2012) (observing that while the 1872 Mining
Law gives miners a statutory right to mine on Forest Service lands, the
federal government ``retains substantial regulatory power'' over these
The DEIS Fails to Assess the Validity of Resolution Copper's Mining
Additionally, despite being an express requirement (see 30 U.S.C.
Sec. 22 which states that only ``valuable mineral deposits'' are
covered by the Mining Law; see also 30 U.S.C. Sec. 611 which states
that ``common varieties'' of minerals are not locatable under the
Mining Law), there is no evidence in the record that any analysis has
been done on whether any of Resolution Copper's mining claims,
including unpatented mining claims, are valid. See Center for
Biological Diversity, 162 IBLA 268 (2004). ``[T]he location of a mining
claim does not render a claim preemptively valid and the Department may
require a claimant to provide evidence of validity before approving an
MPO or allowing other surface disturbance in connection with the
claim.'' Even further, project lands contain many mining claims not
belonging to Resolution Copper and the DEIS (see, e.g., p. ES-22, p.
134, p. 157) notes that under Resolution Copper's mine plans, access to
those other claims ``may be inhibited.'' Yet no analysis appears
anywhere in the DEIS discussing these other claims or reconciling
issues with inhibiting access to those claims.
Under the Mining Law, in order to be valid, mining claims must
contain the ``discovery of a valuable mineral deposit.'' 30 U.S.C.
Sec. 22. The U.S. Supreme Court has endorsed at least two tests for
determining whether a claim qualifies as a ``valuable mineral
deposit.'' The ``marketability test'' outlined in United States v.
Coleman, 390 U.S. 599, 600 (1968) requires a showing that the mineral
``can be extracted, removed, and marketed at a profit.'' The ``prudent
person test'' requires a showing that the discovered deposits ``must be
of such a character that a person of ordinary prudence would be
justified in the further expenditure of his labors and means, with a
reasonable prospect of success, in developing a valuable mine.'' Id. at
602. The Court has held that profitability is ``an important
consideration in applying the prudent-man test and the marketability
test'' and noted that ``. . . the prudent-man test and the
marketability test are not distinct standards, but are complementary in
that the latter is a refinement of the former.'' Id. at 602-603.
Further, the USFS Minerals Manual states that ``[a] claim unsupported
by a discovery of a valuable mineral deposit is invalid from the time
of location, and the only rights the claimant has are those belonging
to anyone to enter and prospect on National Forest lands.'' Forest
Service Manual (FSM) Sec. 2811.5.
The term ``valid claim'' is often used loosely and incorrectly to
indicate only that the boxes have been checked, including posting of
notice, monumentation, discovery work, recording, annual assessment
work, payment of taxes, and so forth, have been met. This overlooks the
basic requirement that the claimant must discover a valuable mineral
deposit. Generally, a valid claim is a claim that may be patented. FSM
No information has been made public to date on the appraisal
process required by Sec. 3003 of P.L. 113-291, despite the statement
that the project apparently hinges on this very appraisal, since
Resolution Copper allegedly ``may or may not choose to undertake the
exchange after receipt of the appraised value.'' (DEIS p. 66).
Information regarding this process should have been included in the
Additionally, the DEIS (p. 66) says that ``It is possible that
mining under the proposed action or action alternatives could also take
place without the land exchange occurring.'' This is a major statement
and would radically change the characteristics of the entire project
and would, at the very least, require the Forest Service to go back to
the drawing board on all aspects of the mine and the DEIS. This would
also potentially violate the Federal Land Policy and Management Act
(FLPMA) and the 1872 Mining Law (as amended) by not requiring
Resolution Copper to pay Fair Market Value (FMV) for the use of public
lands not covered by valid mining claims. 43 U.S.C. Sec. 1701(a)(9)
requires that ``the United States [must] receive fair market value for
the use of the public lands and their resources unless otherwise
provided for by statute.''
No Consideration is Given to Other, Non-Mining Land Uses
Similarly, the USFS position also violates provisions of FLPMA and
the Multiple Use Sustained Yield Act, National Forest Management Act,
1897 Organic Act, and other laws mandating that agencies manage (or at
least consider managing) these lands for non-mineral uses. The USFS has
refused to even consider exercising its multiple-use authority, an
arbitrary and capricious decision under the Administrative Procedure
The USFS cannot simply assume that the lands to potentially be used
for tailings or other mine infrastructure are covered by valid mining
claims. The U.S. Supreme Court in Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) states
that an agency rule ``would be arbitrary and capricious if the agency
has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.''
The DEIS's review and the agencies' proposed approval of this
project are based on the overriding assumption that Resolution Copper
has statutory rights to use all of the lands associated with this
project (including both lands which would be acquired under the
exchange legislation, and lands which would remain in the public
domain), under the 1872 Mining Law. However, where project lands have
not been verified to contain, or do not contain such rights, the USFS'
more discretionary multiple-use authorities apply. See Mineral Policy
Ctr. v. Norton, 292 F.Supp.2d 30 (D.D.C. 2003). The USFS' multiple-use,
public interest, and sustained yield mandates should have been applied
to the areas of this project not covered by valid mining claims. Such
analysis should have been done in this DEIS.
USFS should have inquired in this DEIS as to what portions of its
lands which would be used for the project (including and particularly
those which would remain under federal jurisdiction after the land
exchange is executed) contain ``common varieties'' or ``valuable
mineral deposits.'' The USFS' assumption of rights or entitlement by
Resolution Copper should be investigated and supported by detailed
factual evidence in a new DEIS.
C. THE DEIS FAILS TO ADEQUATELY IDENTIFY AND ANALYZE ALTERNATIVES.
1. Missing Analysis of Action Alternatives
The DEIS completely fails to adequately discuss potential
alternative mining techniques which would not result in the permanent
destruction of the land surface and which would have substantially less
impact on the human environment as a whole and potentially, on the
religious freedoms of affected tribal members. The DEIS merely states
in conclusory fashion with no discussion or elaboration: ``The Forest
Service assessed alternative mining techniques in an effort to prevent
subsidence, but alternative methods were considered unreasonable.'' (p.
ES-3). The DEIS further admits that alternative mining techniques were
not even considered in detail and were ``dismissed from detailed
analysis'' (DEIS p. 29). This is not sufficient under NEPA to support
the dismissal of credible alternative mining technics that have been
presented to the TNF.
The DEIS notes that the ``cutoff grade'' by which the mine can be
profitably operated informs the decision on alternative mining
techniques. Table F-2 (DEIS, Appendix F, p. F-3) reveals that the sole
source of data for these cutoff grade calculations is ``Resolution
Copper.'' The TNF is wrongfully dismissing its duty to analyze
alternatives based solely upon unverified data provided by Resolution
Copper. It is evident that that the finding of alternative methods as
``unreasonable'' was not made by TNF in the first place, but rather,
was made by Resolution Copper and adopted whole cloth by TNF without
analysis or question. This is unacceptable. A more complete and
verified explanation of the rationale for the rejection of other
alternatives (not just using conclusions provided by the company)
should be included in a new DEIS. Anything short of this violates NEPA.
2. Inadequate Baseline Analysis Under the ``No Action'' Alternative
Analysis of the mandatory ``no action'' alternative in the DEIS is
totally inadequate. Section 2.2.3 of the DEIS states that under the
``no action'' alternative, the GPO would not be approved, and none of
the activities in the GPO would be implemented including no mining. At
the minimum, the ``no action'' alternative is intended to serve ``as a
point of comparison for the proposed action and action alternatives''
(DEIS p. 66, emphasis added).
However, the DEIS lists several major ongoing actions of Resolution
Copper which TNF has, essentially, baked into their environmental
baseline analysis, which results in these impacts not being analyzed at
any point in the current DEIS process or during the TNF's prior
consideration under NEPA of the pre-feasibility activities at Oak Flat.
This includes, but is not limited to, the ongoing and ``continued
dewatering'' of the mine shafts, including shafts No. 9 and No. 10,
among other shafts and tunnels. (DEIS p. 300). Other actions and
impacts that have been ignored by the TNF in the DEIS include
``reclamation of the historic Magma Mine; exploration; monitoring of
historic mining facilities such as tailings under existing State
programs and permits; maintenance of existing shaft infrastructure,
including dewatering; and water treatment and piping of treated water
along the MARRCO corridor to farmers for beneficial use.'' (DEIS pp.
65-66). Regarding this last point, the DEIS unfairly considers
Resolution Copper's water recharge efforts which include delivery of
dewatered water to New Magma Irrigation and Drainage District as ``an
applicant-committed environmental protection measure'' (p. 341) while
failing to analyze the actual environmental impacts of that same
dewatering which will occur at the mine and throughout the well
corridor (p. 300). As discussed further below, this is the very
definition of greenwashing, and a failure under NEPA to properly
analyze environmental impacts.
In addition, grazing activity at Oak Flat by Integrity Land &
Cattle Company (a subsidiary company owned by Resolution Copper) has
been ongoing for many years. As the TNF is well aware, cattle grazing
can have significant impacts on environmental sustainability, causing
erosion, loss of plant variability, downcutting, and loss of habitat,
among other adverse impacts. The DEIS failed entirely to analyze how
ongoing grazing activities (particularly by Resolution Copper
subsidiary company Integrity Land & Cattle) have contributed to a
degraded environmental baseline at Oak Flat.
Because the ``no action'' alternative includes (and does not
analyze) a huge slate of ongoing actions by Resolution Copper related
to Oak Flat, including those discussed above and dewatering and other
underground activities, TNF is not able to credibly conclude (as it
does without support) that the project will have ``no impacts from
subsidence, induced seismicity, increased potential for landslides or
rockfall, impacts on caves, karst, or paleontological resources, or
impacts on mining claims'' (DEIS p. 148); ``impacts on soils,
vegetation communities, special status plant species, and noxious weeds
would not occur'' (DEIS p. 183); ``there would be no impacts on air
quality from proposed mining and associated activities'' (DEIS p. 282);
``no perennial streams are anticipated to be impacted'' (DEIS p. 317);
many shallow domestic and stock water supply wells in the area are
``unlikely to be impacted'' (DEIS p. 325).
These conclusions are also undermined by the DEIS itself, which
states that since 2009, groundwater levels in the deep groundwater
system within the Resolution Graben below Oak Flat have declined ``more
than 2,000 feet,'' by ``about 400 feet'' outside the graben, and by
``up to 50 feet'' near Superior (DEIS p. 306). First, this data is
partially provided by Resolution Copper and may be an underestimation--
even at these levels, it is spectacularly difficult to imagine how such
water level declines could not impact any of the listed resources
described in the DEIS at pp.65-66. And yet, these impacts are not
adequately addressed or considered in the DEIS, particularly where TNF
has allowed gradual, but significant, adverse impacts to the
environment to take place as the result of, inter alia, Resolution
Copper's pre-feasibility activities at Oak Flat and related actions
which have now been included in the environmental baseline in the
current DEIS. These actions, which violate NEPA, essentially assure
that the full scope of impacts on the human environment in relation to
this project will never be meaningfully analyzed. In the absence of
full analysis of ongoing actions, such impacts can't be known and these
claims in the DEIS are meaningless. This violates NEPA, among other
laws and requirements.
The DEIS states that ``[b]etween 14 and 16 GDEs, mostly sacred
springs, would be anticipated to be impacted by dewatering'' (DEIS p.
ES-27). However, as noted above, TNF has done nothing to date to
analyze or disclose the impacts of prior pre-feasibility pumping and
other activities on the numerous springs that have been impacted by
Resolution Copper's pre-feasibility activities at the site that date
back at least a decade. As a result, the number of springs that have
been dewatered over this period of time are NOT being considered as
part of the TNF's analysis of direct, indirect, and cumulative impacts
because these impacts have been, essentially, baked into the new
environmental baseline through the ``no action'' alternative. This
problem extends to the associated direct, indirect, and cumulative
impacts on cultural and historic resources, religious practices, as
well as the monitoring or mitigation requirements for GDEs, among other
matters. The requirement for the ``no action'' alternative exists as a
mechanism for comparing the environmental and related social and
economic effects of the affected environment in the absence of the
proposed action, as compared to all of the proposed action
alternatives. These goals have not been met.
The DEIS also fails to recognize the substantial changes in the
region that will occur in the near term, including ecological changes,
substantial population growth and population distribution in Maricopa
and Pinal Counties, a worsening drought and associated measures being
taken both by the State of Arizona and the larger southwestern region
on water management, changes in land use and resource use patterns. To
realistically project conditions in the affected area without the
proposed mine requires TNF to evaluate the aggregate of local
government plans, policies, population projections, capital improvement
plans and similar documents, as well as the plans for other relevant
Federal, State, and local agencies. These, and all baseline conditions,
should have been considered in the DEIS.
D. TRIBAL CONSULTATION HAS BEEN INADEQUATE.
The specific legal responsibility of the U.S. Forest Service to
engage in government-to-government consultation with Indian Tribes is
codified in the Federal regulations. Specifically, 36 C.F.R.
Sec. 219.4(a)(2) states:
(2) Consultation with federally recognized Indian Tribes and
Alaska Native Corporations. The Department recognizes the
Federal Government has certain trust responsibilities and a
unique legal relationship with federally recognized Indian
Tribes. The responsible official shall honor the government-to-
government relationship between federally recognized Indian
Tribes and the Federal Government. The responsible official
shall provide to federally recognized Indian Tribes and Alaska
Native Corporations the opportunity to undertake consultation
consistent with Executive Order 13175 of November 6, 2000, and
25 U.S.C. 450 note.
The TNF, U.S. Army Corps, and other agencies appear to be relying
nearly exclusively on a still-not-yet-executed Programmatic Agreement
(PA) for their tribal consultation responsibilities developed under
Section 106 of the NHPA. This was confirmed by U.S. Army Corps
representatives in attendance at the September 10, 2019 public meeting
in Superior, Arizona who simply referenced the PA when asked if the
Corps had any plans to engage in tribal consultation on the 404 permit.
New drafts of the PA are still being written even to date, and yet when
asked by Tribal Leaders on October 28, 2019 to extend the comment due
date to allow for additional time to review and comment upon the
current draft, the TNF refused.
This PA process improperly separates tribal consultation into a
separate closed box, outside of the comment process and outside of
analysis from the DEIS, which is improper. Analysis of project impacts
and effects, plans for monitoring and mitigation to cultural resources
must be considered in the DEIS as a critical component of the NEPA
process (this can certainly be accomplished without disclosure of any
protected sensitive information)--and yet, the TNF has made it clear
that it has bifurcated this responsibility.
36 C.F.R. Sec. 800.8(a)(3) Inclusion of historic preservation
issues requires agency officials to ensure that preparation of an ``EIS
and record of decision (ROD) includes appropriate scoping,
identification of historic properties, assessment of effects upon them,
and consultation leading to resolution of any adverse effects.'' These
requirements have not been met in the current DEIS. The draft
Programmatic Agreement provided in the DEIS states: ``Identification of
cultural resources has yet to be completed for the Skunk Camp Tailings
location (Alternative 6), pipeline routes for Alternatives 5 and 6,
main 230-kilovolt power lines for the GPO and power line routes for
Alternative 6 and any remaining areas not covered by earlier surveys
due to project adjustments, and is scheduled to be completed in the
summer of 2019.'' (DEIS Appendix O, p. 10). And yet--TNF confirmed, at
its public meetings on September 10, 2019 in Superior and September 12,
2019 in San Tan Valley, that these cultural resources surveys had still
not yet been completed--long after the DEIS had been published for
public comment. Thus, none of the findings of those surveys could have
been considered in the DEIS. If only partial survey findings were
considered in the DEIS, then the DEIS is incomplete. The DEIS should
not have been rushed out the door without this critical information--
which was not unavailable but was being prepared and was forthcoming.
NEPA procedures used by agencies ``must insure that environmental
information is available to public officials and citizens before
decisions are made and before actions are taken.'' 40 C.F.R.
In fact, the Arizona State Historic Preservation Office (SHPO) has
documented serious concerns regarding the tribal consultation process.
Following a meeting on August 29, 2019 (after the comment period on
this DEIS had begun), the State Historic Preservation Officer Kathryn
Leonard wrote a letter to TNF Supervisor Neil Bosworth reiterating
SHPO's ongoing concerns with the PA process. The full text of that
letter is reproduced below and it is expressly incorporated here by
September 19, 2019
Neil Bosworth, Superintendent
Tonto National Forest Supervisor's Office
2324 E. McDowell Road
Phoenix, AZ 85006
RE: Tonto National Forest (TNF) and State Historic Preservation Office
(SHPO) meeting 8/29/19 regarding the Resolution Copper Mine
Dear Mr. Bosworth:
This letter is a follow up to and memorialization of the August 29,
2019 meeting between TNF and SHPO staff regarding the Resolution Copper
Mine Programmatic Agreement (PA) and ongoing Section 106 Consultation.
At our meeting, SHPO reiterated our continuing concerns with the tribal
consultation process, which has not been accomplished in concert with
the process laid out in 36 CFR Part 800, the regulations implementing
Section 106 of the National Historic Preservation Act (NHPA.)
As you are aware, at our meeting on July 13, 2017 SHPO expressed
concerns that, in absence of an executed PA, the plan for government to
government consultation with tribes for Section 106 compliance was
unclear. At that time, our office requested that TNF develop a plan for
tribal consultation that would articulate the manner by which
individual tribes would be engaged during phased historic property
identification and evaluation, assessment of effects, and resolution of
adverse effects. We discussed how, in absence of an executed PA, a
formal plan for tribal consultation would not only assist in directing
TNF compliance with the government to government consultation
requirements of Section 106, but also provide the basis for creating a
record of such consultation on this high profile and potentially
controversial project. We understand that such a plan was not
developed. As a result, it appears that government to government
consultation efforts for this project have become bifurcated, and we
are concerned that tribal consultation under Section 106 and the
provisions outlined in 36 CFR Part 800, the regulations implementing
Section 106 of the NHPA, has not proceeded apace of other federal
authorities guiding consultation with Native American tribes.
SHPO has received copies of correspondence from the San Carlos
Apache Nation and the Pascua Yaqui Tribe expressing concern regarding
the manner by which Section 106 consultation has occurred for the
Resolution Copper project. The Zuni Tribe has also contacted our office
expressing similar concerns, which in particular involve the
distribution of a PA in early draft format with a 10-day comment period
before final execution. We understand from our discussion with your
team on August 29th, that the transmission of this draft PA occurred in
error as the result of internal communication issues. At this time, we
are requesting TNF to provide us with a formal plan for tribal
consultation under Section 106, including articulation of who the TNF
point of contact will be for Section 106 compliance, as well as a plan
for tribal consultation for phased identification and evaluation of
historic properties (including traditional cultural properties,)
assessment of effects, and the resolution of adverse effects. We are
particularly concerned that sites of Traditional Ecological Knowledge
(TEK) identified through the tribal monitoring program are not being
integrated into the phased identification and National Register of
Historic Places evaluation process as prescribed by Section 106 and
would like to understand the agency's plan for how this data will be
employed for Traditional Cultural Property (TCP) identification through
We wish to reiterate to the TNF that information collected by
tribal monitors needs to be formally integrated into historic property
identification efforts, and the TNF needs to determine whether any of
these TEK sites (many of which are also archaeological sites) are
Register-eligible TCPs. This information (in redacted form) needs to be
conveyed to our office for concurrence and also needs to be shared with
consulting parties. We are happy to work with the TNF to articulate
this protocol in the draft PA, as well as proposed resolution of
adverse effects to register-eligible TCPs.
We appreciate your cooperation in complying with historic
preservation requirements for federal undertakings. Please do not
hesitate to contact me by telephone at 602.542.4009 or by email at
[email protected], if you have any questions.
State Historic Preservation Officer.
c. Chris Daniels, ACHP
Terry Rambler, San Carlos Apache Tribe
Vernelda Grant, San Carlos Apache Tribe
Robert Valencia, Pascua Yaqui Tribe
Karl Hoerig, Pascua Yaqui Tribe
Val Pantea, Pueblo of Zuni
Kurt Dongoske, Pueblo of Zuni
Additionally, the draft PA as attached to the DEIS is also
incomplete as it does not contain any of its appendices (listed at
Appendix O, p. 24): A. Area of Potential Effects; B. Maps; C.
Definitions; D. NAGPRA Plan; E. Key Staff Contact Information; or F.
Programmatic Agreement Process. Meaningful comments cannot possibly be
solicited on partially provided materials. This violates NEPA.
E. EFFECTS ANALYSIS
1. The DEIS fails to Analyze and Mitigate Direct, Indirect, and
Cumulative Impacts to Religious, Cultural, Traditional,
Archaeological & Historic Resources.
As discussed in the RFRA section, supra., Chi'chil Bildagoteel (Oak
Flat), as well as Apache Leap and Gaan (Devil's) Canyon, are sacred and
holy places. As testified to by Wendsler Nosie, former chairman of the
San Carlos Apache Tribe before the U.S. House Natural Resources
Committee, Subcommittee on National Parks, Forests and Public Lands on
November 1, 2007:
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 ``Devil's 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.\20\
\20\ Southeast Ariz. Land Exchange and Conservation Act of 2007:
Hearing on H.R. 3301 Before the Subcomm. on Nat'l Parks, Forests, and
Pub. Lands, 110th Cong. (Nov. 1, 2007), https://www.govinfo.gov/
As stated verbatim in our project scoping comments submitted to the
Tonto National Forest on July 18, 2016 (which are attached in full and
incorporated herein): ``Oak Flat is a place of religious, cultural,
traditional, archaeological and historic importance to certain of
ITAA's Member Tribes. It is listed on the National Register of Historic
Places as a Traditional Cultural Property under Section 106 of the NHPA
and it qualifies as an ``Indian sacred site'' under E.O. 13007.''
The fundamental importance of Oak Flat stems, in part, from its
continued existence as a natural place within the natural world. Oak
Flat has, for countless generations, played a crucial role in the
exercise of certain Apache and Yavapai religious, traditional, and
cultural practices, and these practices continue to this day. The water
sources at Oak Flat, including its springs, seeps and surface water are
fundamental to the integrity of Oak Flat. The oak groves at Oak Flat
have always provided an abundant source of acorns that serve as an
important food source. There are also hundreds of traditional plants
and other living things in the Oak Flat area that are crucial to
certain Tribal practices and life ways. Some of these plants are common
and some are medicines known to and harvested only by qualified Tribal
practitioners. While some of these plants can be gathered in other
areas, only the plants within the Oak Flat area are imbued with the
unique power of this sacred area.
For certain Western Apache, including certain members of the San
Carlos Apache Tribe, Oak Flat is also the home of important Gaan (or
holy spirits) that are directly associated with this place.
Furthermore, Oak Flat sits in the context of the surrounding Tonto
National Forest, which also contains features and sites important to a
number of Tribes. Archaeological resources have been found throughout
the area, while certain seeps and springs located within the footprint
of one of the Alternative tailings sites have been identified to TNF as
significant to Tribes.
The Oak Flat area is also important habit for Bald and Golden
Eagles. While the DEIS entirely failed to conduct meaningful analysis
of the project impacts on Bald and Golden eagles (or with regard to
mitigation as a result of such impacts) with respect to their legal
obligations under BGEPA, it also wholly failed to examine the direct,
indirect, and cumulative impact of the project on the cultural,
religious, and traditional importance of Eagles to Tribes. Bald and
Golden Eagles play a deeply rooted role in Tribal religion, traditions
and culture, and indeed, in the very identity and health of Tribal
people. For purposes of clarification, while ITAA Member Tribes may
refer to both Bald and Golden Eagles collectively as ``Eagles'' or
``the Eagle'' in general conversation, the Tribes distinguish between
the two for more specific conversation, ecological reference, and
ceremonial practice. Indeed, the Tribes recognize the characteristics,
qualities, ecological function, place and power specific to each Eagle.
To further illustrate the importance of Eagles, certain populations
of Eagles remain under the watch and protection of ITAA Member Tribes
due to the location of Eagle nests and wintering and foraging habitat
on the Member Tribes' reservations. Certain of ITAA's Member Tribes are
also expressly charged under their Tribal Constitutions with the
responsibility and authority to manage and regulate the wildlife and
habitat found within their Reservations, including Eagle habitat. While
each of ITAA's Member Tribes may perceive Eagles quite differently or
rely on the Bald and Golden Eagle for different aspects of their
religious, traditional or cultural practices, Eagles in general are and
remain important beings, whose lives are inextricably intertwined with
the continued existence of all human beings on this Earth. For many of
ITAA's Member Tribes, the Eagle figures prominently in their oldest
creation songs and stories, and in almost all of the ancient prayer
song cycles. Indeed, many of these songs can be regularly heard today
during the Tribal ceremonies that are conducted throughout the year,
sung word-for-word the way they have been sung for generations.
In fact, the U.S. Fish and Wildlife Service has also recognized the
importance of Eagles to the religious, traditional and cultural
practices of Tribes, stating in 2009:
Some Tribes and tribal members may consider eagle nests sacred
sites provided for in the American Indian Religious Freedom Act
(42 U.S.C. Sec. 1996) (some are frequently referred to as
Traditional Cultural Properties (TCPs), and as potential
historic properties of religious and cultural importance under
the NHPA. [ ... ] In addition, some tribes may consider all
eagles and eagle nests as TCPs or sacred sites, and potential
historic properties of religious and cultural significance
which must be considered under Section 106 of the NHPA.\21\
\21\ See U.S. Fish & Wildlife Serv., Div, of Migratory Bird Mgmt.,
Final Environmental Assessment: Proposal to Permit Take as Provided
Under the Bald and Golden Eagle Protection Act (Apr. 2009).
The DEIS (Table 3.8.4-2, pp. 466-468) notes that hundreds of
thousands of acres of Eagle habitat ``potentially would be impacted
under each action alternative'' (referencing only the tailings
alternative sites and not the mine site) but no analysis appears
anywhere on how the project activities--including but not limited to
dewatering and water use and transmission lines--will directly,
indirectly, and cumulatively impact Eagles and Eagle habitat or the
traditional, cultural or religious practices of the Tribes. This is a
violation of NEPA. See 36 C.F.R. Sec. 220.4(f).
Inadequate Analysis of Impacts
While the DEIS says that the Resolution Copper mine project,
including already-ongoing activities like dewatering, will or is likely
to deplete water supplies and harm or destroy the streams, springs,
seeps and other water features that are needed to preserve Oak Flat and
support its animals and plants, discussion and analysis of the impacts
of specific direct, indirect and cumulative and impacts is woefully
inadequate and mitigation plans are left undefined. The DEIS (p. ES-27)
states: ``Between 14 and 16 GDEs [groundwater-dependent ecosystems],
mostly sacred springs, would be anticipated to be impacted by
dewatering. Although mitigation would replace water, impacts would
remain to the natural setting of these places.'' The DEIS contains no
meaningful or detailed description as to these impacts, including on
species such as Eagle.
For over ten (10) years, the ITAA and its Member Tribes have
expressed specific, detailed concerns about the various likely and
inevitable impacts of the proposed Resolution Copper Mine to the Forest
Service on these specific religious, cultural, traditional,
archaeological, and historical values. This has been well-documented
through extensive communications and actions taken regarding this
project, including Congressional testimony submitted by tribal leaders
including former San Carlos Apache Tribal Chairman Wendsler Nosie and
current Chairman Terry Rambler, among other tribal leaders. In
addition, extensive background on the specific religious, cultural,
traditional, and religious importance of the Oak Flat area was
discussed in the ITAA scoping comments submitted on July 18, 2016
(attached). There have also been ethnographic studies performed for
this area by TNF \22\ and Oak Flat is listed as a Traditional Cultural
Property under the NHPA (Chi'chil Bildagoteel Historic District, listed
on April 3, 2016, NPS#16000002).
\22\ See Maren P. Hopkins, Chip Colwell, T.J. Ferguson, & Saul L.
Hedquist, Ethnographic and Ethnohistoric Study of the Superior Area,
Arizona (Sept. 14, 2015) (Redacted) (prepared by Anthropological
Research, LLC for the Tonto National Forest and Resolution Copper
The DEIS (p. 678) acknowledges that ``Loss of the culturally
important area of Oak Flat would be a substantial threat to the
perpetuation of cultural traditions of the Apache and Yavapai tribes''
and that ``Native American communities would be disproportionately
affected by the land exchange.'' Still, the DEIS (p. 6) states that the
Forest Service is still working ``to better understand the historical,
cultural, and religious importance of the [project] area.'' First, this
section does not contemplate any other ``area'' other than the land
surface overlying the copper deposit although many other lands have the
potential to be impacted by the project. Second, the draft Programmatic
Agreement attached to the DEIS (p. 4) indicates that cultural resource
surveys of the tailings alternatives are still ongoing, and that no
cultural resource surveys have been done on the pipeline alignments.
Third, TNF has violated NEPA by releasing the DEIS without all of
this work having been done already. Federal regulations (see 36 C.F.R.
Sec. 800.8(a)(3) and Sec. 800.8(c)) require that identification of
historic properties, assessment of impacts, and resolution of adverse
effects through avoidance, minimization, or mitigation be completed
prior to--in order to be included in--the NEPA documents. Because this
work is apparently still ongoing, a full analysis of direct, indirect
and cumulative impacts is missing from the DEIS (a failure which
violates NEPA, among other federal laws and requirements). In the
absence of this analysis, a reasoned decision cannot be made.
Alternatively, if this work has already been done but has not been
included or considered in this DEIS--this is also a glaring failure
that violates, inter alia, NEPA.
The DEIS (p. 686, et seq). concludes that tribes with cultural,
social, or religious ties to the project area ``will be affected
permanently from direct, permanent impacts on these sites and values''
and that these impacts ``cannot be avoided or fully mitigated,'' but
also states that ``at this time, no mitigation measures have been
identified what would be solely pertinent to environmental justice.''
\23\ Pursuant to Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' and accompanying Guidelines,\24\ federal agencies are
required to consider environmental justice in their analysis under
NEPA. According to the EPA, environmental justice (EJ) is defined as
``the fair treatment and meaningful involvement of all people
regardless of race, color, national origin, or income with respect to
the development, implementation and enforcement of environmental laws,
regulations and policies,'' where fair treatment ``means that means no
group of people should bear a disproportionate share of the negative
environmental consequences resulting from industrial, governmental and
commercial operations or policies.'' \25\ Mitigation measures with
regard to EJ and the other specific topics discussed above, which are
required by law to be included in the DEIS and subject to public
comment, are absent from this DEIS.
\23\ At 126.96.36.199, the DEIS states: ``Environmental Justice There
would be irretrievable socioeconomic impacts under all action
alternatives because existing land uses, including recreation
opportunities, would be precluded within the project area during the
life of the project. All action alternatives would potentially cause
irreversible impacts on the affected area with regard to changes in the
local landscape, infrastructure and tax base funding, community values,
and quality of life for residents of the town of Superior.'' This is
the only analysis regarding environmental justice that is provided by
the DEIS. This is inadequate.
\24\ See CEQ, Environmental Justice: Guidance Under the National
Environmental Policy Act (Dec. 10, 1997), https://ceq.doe.gov/docs/ceq-
\25\ EPA, Learn About Environmental Justice (last visited Nov. 6,
Finally, the TNF should have considered the United Nations
Declaration on the Rights of Indigenous Peoples (Declaration) in the
NEPA process. In its Final Summary of Issues Identified Through Scoping
Process published November 2017, the TNF wrongfully dismissed this
issue, stating that since the United States ``was not a signatory'' to
the Declaration, then it ``must therefore be considered beyond the
scope of the Forest Service decision.'' In fact, on December 16, 2010,
President Obama announced that the United States was reversing its
negative vote on the Declaration and it now supports the Declaration in
full.\26\ As such, the United States, while not a ``signatory'', fully
supports the purposes of the Declaration and has for nearly a decade.
Consideration of the Declaration was dismissed on incorrect grounds and
should have been considered by TNF in preparing this DEIS.
Additionally, the ACHP adopted a plan in 2013 to support the
Declaration and encourages Federal agencies to utilize its contents
``specifically in carrying out their Section 106 responsibilities.''
\26\ Native American Rights Fund, United Nations and Indigenous
Peoples (last visited Nov. 4, 2019), https://www.narf.org/cases/
\27\ AHCP, Section 106 and the U.N. Declaration on the Rights of
Indigenous Peoples: General Information and Guidance (last visited Nov.
6, 2019), https://www.achp.gov/indian-tribes-and-native-hawaiians/
Article 11 of the Declaration makes clear that ``. . . Indigenous
peoples have the right to practice and revitalize their cultural
traditions and customs. This includes the right to maintain, protect
and develop the past, present and future manifestations of their
cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies . . .'' Similarly, Article 12(2) calls for the
United States to ``. . . seek to enable the access and/or repatriation
of ceremonial objects and human remains in their possession through
fair, transparent and effective mechanisms developed in conjunction
with indigenous peoples concerned . . .'', while Article 25 emphasizes
the right of indigenous peoples to ``maintain and strengthen their
distinctive spiritual relationship with their traditionally owned or
otherwise occupied and used lands, territories, waters and coastal seas
and other resources . . .'' TNF wrongfully dismissed consideration of
the Declaration from scoping, and should have considered and applied
the Declaration in preparation of this DEIS.
2. The DEIS is Radically Insufficient with Respect to Water.
In ITAA's scoping comments submitted July 18, 2016 (attached), the
contents of the General Plan of Operations (GPO) (also referred to in
these comments as the ``Mining Plan of Operation'' or ``MPO'') were
very carefully analyzed with regard to water. There is only a single
place in the GPO, where Resolution Copper provides a number for its
total water needs for the life of the mine. Specifically, Resolution
Copper states, ``[a] current estimate of the total quantity of water
needed for the life of the mine is 500,000 ac-ft.'' GPO, Volume 1, Sec.
3.6.1, Water Balance, Sources, and Management at 174. Yet, as ITAA
specifically demonstrated in its scoping comments, close analysis of
the Tables and Figures contained in the GPO--figures that were prepared
by Resolution Copper--shows that Resolution Copper actually believes
its total water usage over the life of the mine will be closer to
786,626 AF. This is more than enough water to serve over 1 million
households in Phoenix for at least 3 years. A summary of these figures
taken directly from the GPO is reproduced below. This figure is far
more than the water usage numbers that are contained anywhere in the
Nevertheless, it appears that the TNF has failed to consider
these comments as part of the DEIS process. Certainly, they have not in
any way disputed the larger number of 786,626 that was arrived at by
using Resolution Copper's own tables and figures from the GPO. Instead,
much like elsewhere in the DEIS, TNF appears to have generally adopted
the assertions of Resolution Copper about their water usage, with
little to no scrutiny or analysis. This violates among other things the
``hard look'' requirements of NEPA. Additionally, the TNF has done
nothing in the DEIS to address the clear disconnect between Resolution
Copper's own water usage figures. In fact, the DEIS (p. ES-24) simply
concludes with no analysis or support that for the life of the mine,
``87,000 acre-feet of water would be pumped from the mine, and between
180,000 and 590,000 acre-feet of makeup water would be pumped from the
Desert Wellfield in the East Salt River Valley.''
Additionally, as noted in ITAA's scoping comments, ITAA considers
the figures from Resolution Copper's materials to be an overly
conservative estimate of the amount of water actually needed for the
mine. This is demonstrated by the analysis of Dr. Steven Emerman
(report attached here), who reported that water estimates for this mine
are ``about one-third of industry standards.'' However, Industry
standards are never addressed in the DEIS.
These failures do not meet multiple requirements under NEPA and
show that the Forest Service has no intention of taking a hard look
into the direct, indirect, and cumulative impacts to Arizona's water
supplies from this project. Given the critical importance of water to a
wide-ranging number of local, regional, and state interests, these
failings plainly demonstrate that the TNF needs to go back to the
drawing board on all water and water-related issues. Anything short of
this violates NEPA.
40 C.F.R. Sec. 1502.24 requires agencies to ``insure the
professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements.'' See also
Forest Service Handbook 1909.15, Chapter 20, Sec. 23.33. For a
multitude of reasons including as discussed in this section, the DEIS
is radically insufficient with regard to water including groundwater,
surface water, water quality, all of the water models, direct, indirect
and cumulative impacts of water usage, mitigation, and analysis of
a. The DEIS Fails to Analyze and Mitigate the Direct, Indirect,
and Cumulative Impacts of Water Usage.
As noted above, ITAA's July 18, 2016 scoping comments included
several concerns and questions regarding the substantial water demands
and use of water sources for the Resolution Copper mine project. Most
if not all of those have not been included in this DEIS and are still
unanswered. It is clear that TNF has done little to nothing in the DEIS
to meaningfully consider Resolution Copper's ability to develop a
virtually unlimited number of wells for its project under Arizona's
groundwater laws to support the water consumption and dewatering needs
of the proposed Resolution Copper mine. Unlike other users of
groundwater in Arizona (i.e. industrial, agricultural, and residential)
mines are essentially unregulated water users. Groundwater extraction
permits for mines are ``must issue.'' As a result, mining companies
often face little to no legal restrictions or limits on the amount of
water they can pump from the aquifer. See, e.g., A.R.S. Sec. 45-514.
While it is not the obligation of the TNF to assert a view one way or
another on the suitability of Arizona law in this regard, it is TNF's
obligation in the DEIS to consider potential direct, indirect and
cumulative impacts of the project that would arise from the use of
mineral extraction permits and other authorizations under state law
that permit the mine to deplete (virtually unregulated) Arizona's
existing water supplies. The net effect is that, notwithstanding the
representations made today, Resolution Copper can pump as much water as
they want at any point in the future and as such, the DEIS must
consider this in its evaluation of impacts.
Although the Arizona Department of Water Resources (ADWR) has been
a cooperating agency in the NEPA process, the DEIS fails entirely to
contemplate the actual availability of water resources--or the direct,
indirect, and cumulative impacts from withdrawing such large volumes of
water from the various undetermined sources (groundwater, surface
water, banked water, etc.). In fact, the DEIS (p. 18 and elsewhere)
states that the water sources ``would be'' (have not yet been)
determined by ADWR. This determination should have been made and
included in the DEIS for full analysis of its direct, indirect, and
cumulative impacts, as well as mitigation. The failure of the TNF to do
this violates NEPA.
The DEIS (p. 59) further states that ``[r]egardless of the
authority for obtaining the water, the water is pumped from the same
wells.'' Given this assertion, a full analysis should also have been
done in this DEIS to consider impacts of the mine's proposed water
usage on Arizona's water supplies at the local, regional, and state
level, regardless of what ``paper'' source are legally ascribed for
that water. This points were made in some detail in the ITAA scoping
comments, but they are disregarded in the DEIS. Furthermore, given
ADWR's status as a cooperating agency, the DEIS should have (but
completely failed to) analyze the water management actions by that
agency and how those may affect and be affected by this project,
including the Management Plans required under the 1980 Groundwater Code
which was enacted to ``aggressively manage the state's finite
groundwater resources.'' \28\
\28\ ADEQ, Active Management Areas (last visited Nov. 4, 2019),
Under the Groundwater Code, areas of the state with ``heavy
reliance on mined groundwater'' were designated as Active Management
Areas (AMAs), and for many AMAs including the Phoenix AMA, the primary
management goal is to achieve safe-yield by the year 2025. The current
mine infrastructure ``lies almost entirely within the Phoenix AMA''
(DEIS p. 312), and the Desert Wellfield is located within ``the East
Salt River valley subbasin of the Phoenix AMA'' (DEIS p. 18).
Incredibly, no discussion or analysis is included anywhere in the DEIS
on the relationship between the large amount of water proposed to be
used by this project and the Phoenix AMA safe-yield goals. This is
inconsistent with NEPA, which requires, at a base, a ``reasonably
thorough discussion of the significant aspects of probable
environmental consequences.'' Oregon Natural Resources Council v. Lowe,
109 F.3d 521, 526 (9th Cir. 1997).
The DEIS (p. 335) states that ``the amount of groundwater in
storage in the East Salt River valley subbasin (above a depth of 1,000
feet) is estimated to be about 8.1 million acre-feet.'' The amount of
water in storage (meaning in water storage facilities) is NOT the same
thing as the amount of water which actually exists in the subbasin.
These well document aspects of Arizona Water Law have been discussed by
ADWR in the past and these are documented quite clearly in the ITAA
scoping comments. Yet without analysis, the DEIS adopts and presents
this 8.1 million acre-foot figure as the amount of water ``estimated to
be physically available in the aquifer.'' (DEIS p. 342). The DEIS never
confirms where this estimate of how much water is physically available
in the aquifer actually comes from, whether it has been independently
verified, what the range of uncertainty is, or any of the discussions
which would otherwise accompany verifications being done as a proper
part of NEPA analysis. This is a major point of concern which falls far
short of the basic requirement for a ``hard look'' under NEPA.
The DEIS further spends astonishingly little time analyzing the
cumulative impacts of the Resolution Copper Mine water usage on
regional water supplies--regional water supplies that are already
limited by growth and pumping. In fact, the DEIS (p. 342) sets up and
immediately dismisses its obligation to consider cumulative impacts,
stating that although ``groundwater demand is substantial and
growing,'' and that ``the total demand on the groundwater resources in
the East Salt River valley is substantial and could be greater than the
estimated amount of physically available groundwater,'' ``it is not
possible to quantify the cumulative water use in the area'' due to
``uncertainties.'' Despite documented instances of residential wells in
Pinal County already beginning to dry up at certain depths,\29\ no
consideration is given to the steep costs to residential well owners in
this region when they are forced to deepen their wells to access water
in lower depths, an impact which Resolution Copper water use would
contribute to potentially directly but also indirectly and
cumulatively. This impact should have been considered but was absent
from this DEIS.
\29\ See ABC15 News, Private Wells Running Dry in Pinal County
(Oct. 24, 2019). https://www.abc15.com/news/region-central-southern-az/
The DEIS is fundamentally flawed without these important
discussions, since all of the proposed mine's activities, in one way or
another, involve water.
b. Impacts of activities in the desert wellfield (MARRCO
corridor) including water pumping have not been fully
considered under NEPA.
The DEIS (p. 19) states that the water pipeline corridor to the New
Magma Irrigation and Drainage District (NMIDD) irrigation canal is
authorized under an existing Special Use Permit, but the next sentence
also states: ``Future activity within the MARRCO corridor potentially
could be covered under the final mining plan of operations, rather than
a special use permit.'' Future activity in the MARRCO corridor includes
at least the drilling of several dozen wells, construction of major
power line infrastructure, new pump stations, grading and sloping,
access roads, and an additional 50-foot easement (DEIS, Appendix G, p.
G-10), all of which are major connected actions as defined in 40 C.F.R.
Sec. 1508.25, and which should have been fully analyzed in this DEIS.
This is also required by the single environmental impact statement
requirement of the NDAA as discussed at the beginning of this comment
In short, the DEIS fails to provide a full and fair discussion of
the direct, indirect, or cumulative impacts of groundwater pumping in
the MARRCO Corridor desert wellfield. There are many different problems
that stem from this inadequate approach under NEPA. For example, it is
well-documented that excessive, long-term extraction of groundwater can
cause subsidence and fissures in the earth. These occurrences have been
particularly concentrated in the East Salt River Valley subbasin, where
over 500,000 AF of water would be pumped under the preferred
Alternative 6. Regarding the East Salt River Valley subbasin, ADWR's
Water Planning Atlas states: ``Earth fissuring and subsidence have
occurred in the ESRV sub-basin due to localized pumping. These
occurrences are found near Apache Junction and in the vicinities of
Queen Creek, North Scottsdale and Paradise Valley (Rascona, 2005).''
\30\ The University of Arizona's Water Resources Research Center
states: ``Within the Salt River Valley are various locations where
subsidence is occurring.'' \31\
\30\ See ADWR Water Atlas, Active Management Area Hydrology--
Groundwater Overview and Phoenix AMA (last visited Nov. 4, 2019),
\31\ Joe Gelt, Land Subsidence, Earth Fissures Change Arizona's
Landscape, 6 ARROYO 2, Water Resources Research Center (Summer 1992),
The DEIS (p. 334) contains no meaningful analysis of the potential
subsidence from its large water uses, saying only that while
groundwater pumping has already caused land subsidence in the wellfield
area, a detailed analysis of land subsidence caused by withdrawals from
this project is ``not feasible'' and that the impacts from one pumping
source ``cannot be predicted or quantified.'' This is not a full nor a
fair discussion of the potential environmental impacts caused by the
large volume of proposed pumping in this area as required by 40 C.F.R.
Sec. 1502.1. Nor does any part of this discussion cite to supporting
evidence, as required by 40 C.F.R. Sec. 1502.1 (requiring that
statements ``shall be supported by evidence that the agency has made
the necessary environmental analyses.''). Since subsidence due to water
use is not analyzed in this DEIS, the direct, indirect, and cumulative
impacts from that subsidence (such as the impacts of subsidence on the
U.S. 60, S.R.79, and other nearby roadways, ground instability, impacts
to wildlife, impacts to existing and planned infrastructure, etc.) are
all absent from the DEIS. Drawdown contours are shown in Figure 3.7.1-2
(DEIS p. 298) which overlay nearby roadways and developed areas, but
the impacts of these drawdowns on those features are never analyzed in
The DEIS (p. ES-24) states that desert wellfield pumping in the
East Salt River Valley MARRCO corridor ``would incrementally contribute
to the lowering of groundwater levels and cumulatively reduce overall
groundwater availability in the area'' but the DEIS contains no
meaningful analysis of impacts or plans for mitigation. As discussed
further in these comments, Resolution Copper's water recharge and
storage credits, which are ``not required under Arizona water law'' and
a ``voluntary measure'' (DEIS p. 341) are non-binding by definition.
They can be freely sold or exchanged at any time and thus, TNF cannot
rely on the potential use of these credits for mitigation.
Nevertheless, this is exactly what TNF does. See DEIS p. 333, stating
``[t]he applicant-committed environmental protection measures include
remedying any impacts on water supply wells caused by drawdown from the
c. The groundwater model for the MARRCO wellfield is deficient.
Although Resolution Copper purportedly intends to pump 540,000
acre-feet of water from groundwater resources (under the preferred
Alternative 6, DEIS p. 99), the DEIS makes no attempt whatsoever to
model or estimate groundwater resources and thus, makes no attempt to
study the direct, indirect or cumulative impacts to these resources.
This is a glaring deficiency in the DEIS and a plain violation of NEPA.
The DEIS (p. 303) states that the groundwater flow model to predict
pumping impacts from the MARRCO corridor desert wellfield was built by
Resolution Copper ``from an existing, calibrated, regulatory model
prepared by ADWR'' and, since the original model had been used for
planning purposes since the 1990s, the modified model ``did not require
as extensive a review as the models prepared specifically for the
mine.'' This is wrong. TNF is required to review and fully understand
models used in its DEIS, including any modifications to the existing
model that has not been meaningfully described. Whether or not the
original model is reliable or sufficient for current conditions is a
question that TNF must independently verify. Further, to the extent
this model has in some way been modified by Resolution Copper, these
changes also must be subjected to the same thorough review in the DEIS.
Overall, insufficient data is provided regarding the groundwater
flow model on the MARRCO wellfield. The DEIS (p. 303) under the section
titled ``Model Used for Mine Water Supply Pumping Effects'' indicates
that Resolution Copper built a model from an existing ADWR model for
this area. The DEIS states that a less extensive review was given to
this model, yet TNF does not give an explanation why, or what this
lower-level review supposedly entailed. As discussed above, it appears
that Resolution Copper has taken an ADWR model and modified it or
updated it in some way and no discussion appears anywhere in the DEIS
about how this model was changed. This violates myriad requirements of
It is also noteworthy that ADWR has recently finalized a new
groundwater model for this area, correcting errors and shortcomings in
the older model. The model reflects a ``major update'' performed by
ADWR in 2014--``structural modifications'' made in order to ``address
differences found between the simulated thickness of the aquifer
materials and the thickness described in numerous well drillers'
logs.'' \32\ According to the 2019 Pinal Model Technical Memorandum,
``[c]hanges were also made in the East Salt River Valley (SRV) portion
of the SRV model'' based on significant structural modifications.\33\
Given the shortcoming in the modeling performed or used under this
DEIS, TNF should perform a complete analysis of the direct, indirect,
and cumulative impacts of pumping using this new and updated model. If
it requires modifications or recalibration for this purpose, this
should be justified and disclosed for public review and scrutiny.
\32\ The Pinal Model was finalized in October 2019. See http://
\33\ ADWR, 2019 Pinal Model and 100-Year Assured Water Supply
Projection Technical Memorandum (Oct. 11, 2019), http://
The DEIS (p. 300) says that groundwater model results ``could be
reasonably assessed up to 200 years'' but this statement is couched in
multiple qualifiers with no explanation given for why only 200 years is
the threshold. Additionally, although it is common scientific practice
to do so, no range of uncertainty (such as 10-15 years,
for example) accompanies this figure. This figure is relied upon as the
basis for all quantitative results in the DEIS, but it is not a
reliable figure. Furthermore, the vague expression of the estimated
point of maximum groundwater drawdown or impact as ``decades or even
centuries'' is a huge unusable range, and completely unreliable.
A map (or discussion) of the groundwater model area boundaries for
the East Salt River Valley analysis area are never provided. The DEIS
(p. 298) claims that figure 3.7.1-2 shows the groundwater model
boundaries/analysis area of the East Salt River valley model. However,
figure 3.7.1-2 (p. 298), below, shows only a zoomed-in, limited portion
of this groundwater model area--making it impossible to know what the
analysis area does or does not include.
The DEIS also contains no meaningful discussion whatsoever
about the accuracy of the groundwater model. The DEIS contains multiple
assurances that the groundwater model is precise since it produces
results with ``many decimal points'' (p. 301). The DEIS states that the
Groundwater Modeling Workgroup only assessed the groundwater model
results for precision. This is not a scientifically sufficient way to
evaluate results--both accuracy and precision are required which are
totally independent concepts and not to be used interchangeably (as is
done in BGC Engineering USA Inc. 2018d). ``Accurate scientific
analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA.'' 40 C.F.R. Sec. 1500.1. This DEIS fails to meet
this requirement in violation of NEPA.
As shown below, the analysis area of the water quality model omits
critical segments of Queen Creek. Figure 3.7.2-1 shows what is included
in the water model analysis area studied under this section (supposedly
encompassing where groundwater or surface water quality changes could
potentially occur under the project). The area studied is extremely
insufficient for many reasons, including that only about half of the
length of Queen Creek between the block-cave zone and Whitlow Dam is
included in the analysis area, despite Resolution Copper having an
AZPDES permit No. AZ0020389 that allows them to dewater Shafts 9 and 10
and to discharge mine wastewater into the unstudied portion of Queen
Creek. An excerpted copy of Figure 3.7.2-1 (DEIS p.347) is inserted
below with an arrow showing the approximate location of discharge under
AZ0020389. The DEIS does not address why this study failed to include
such a large portion of Queen Creek, but this is another glaring
omission that is contrary to science and which fails to comply with the
requirements of 40 C.F.R. Sec. 1502.16 and the very first requirement
on the list of requirements for an EIS at Section 102(2)(C) of NEPA
Also, as noted briefly above, Resolution Copper's water
recharge and storage credits, which are ``not required under Arizona
water law'' and a ``voluntary measure'' (DEIS p. 341) are not a
requirement by definition and should not be relied upon by the TNF in
any part of the DEIS. Therefore, it is improper for the recovery of
these credits to be considered in any part of this water model. Yet the
ADWR/Desert Wellfield Modeling Meeting minutes (cited as Garrett 2018a)
contain the following statement: ``Estimate that 10-30 feet of drawdown
in the regional aquifer at Desert Wellfield has been avoided because of
the long-term storage credits enabled by Resolution.'' This estimate is
inaccurate. Resolution Copper has stored water in multiple storage
facilities located in various different sub-basins, many of which are
nowhere near the Desert Wellfield.\34\ The DEIS lists the various
storage facilities in vastly different locations in which Resolution
Copper has banked, recharged or acquired credits but still concludes
that ``this offsets'' its pumping (p.342). It does not. The drawdown
will be the drawdown in this area, regardless of water credits
voluntarily stored many miles away.
\34\ This issue was raised during scoping. See the Inter Tribal
Association of Arizona's Scoping Comments on the Resolution Copper
Project Land Exchange Environmental Impact Statement (Jul. 18, 2016).
Incorporation of any voluntarily acquired recharge and storage
credits (which are not mandatory and can be resold at any time) into
any water model for this project is an improper consideration under
NEPA. This failure permeates much of the TNF's water modeling and its
analysis of the direct, indirect and cumulative impacts of the pumping
on local wells and regional water supplies. This violates NEPA.
d. The DEIS fails to mention or consider the increased water
pumping facilitated by the Drought Contingency Plan in the East
Salt River valley as a reasonably foreseeable future action and
as part of a cumulative effects analysis.
Under the Drought Contingency Plan (DCP), there is a widely known
major federal action being implemented in Arizona via specific DCP
approval legislation involving the same area where Resolution Copper's
new well fields will be located. That is, under the impending Tier 2
shortage, farmers in East Salt River Valley aquifer will develop new
pumping infrastructure that will facilitate the new extraction of up to
70,000 AF of groundwater from the region--the very same region where
Resolution Copper intends to develop its recovery well fields and
potentially, significant mineral extraction wells under Arizona law.
These reasonably foreseeable activities are in no way speculative. The
DEIS fails to consider or even mention this.
Significantly, the DEIS also does not state anywhere exactly how
much water is already being pumped from groundwater resources in Pinal
County, or how much more groundwater resources will be used over the
next several years from this already-strained area under the actions
facilitated under the DCP.
Despite the prevalent nature of the State's DCP actions in the
media, the existence of federal legislation associated with DCP, and
the subject specifically being raised in scoping by ITAA \35\ and
subsequent information provided to SWCA representative Charles Coyle on
April 2, 2019, the DEIS does not meaningfully address the direct,
indirect, and cumulative impacts to Arizona's water supplies and to
Arizona's water users stemming from Resolution Copper's water pumping
in the context of the past, present and reasonably foreseeable actions
required for a cumulative impacts analysis. The contents of the April
2, 2019 email to SWCA are cited here below. Linked materials are
incorporated into these comments.
\35\ See the Inter Tribal Association of Arizona's Scoping Comments
on the Resolution Copper Project Land Exchange Environmental Impact
Statement (Jul. 18, 2016).
As part of the implementation of the Lower Basin Drought
Contingency Plan in Arizona, water stakeholders, including the
State of Arizona, the Central Arizona Project (CAP) cities and
Tribes in the state, agreed to fund the development of
groundwater infrastructure in Pinal County to supplant the loss
of Colorado River water under DCP and during shortage on the
Colorado River. The stakeholders agreed to help fund
rehabilitation of existing wells and construction of new wells
sufficient to provide 16,500 Acre-Feet of water in 2022 and
70,000 Acre-Feet of water in 2023 and thereafter. (See slide 10
of this presentation for a useful chart).
In January, the Arizona legislature approved, and the Governor
signed, a $9 Million appropriation from the state specifically
for rehabilitation of existing wells and construction of new
wells as part of the DCP approval legislation. In addition, CAP
authorized the use of $5 Million of its revenues to be used for
groundwater infrastructure. CAP also justified their
appropriation as an investment in stored CAP water currently in
Pinal County, with the expectation that the water will be
called upon during shortage. This recovery of stored water
should also be considered a Reasonably Foreseeable Activity.
The Pinal County farmers currently expect to raise $25 Million,
including the appropriations from the state and CAP, with the
goal of seeking federal funding for an additional $25 Million
through NRCS, USDA and possibly Reclamation. In the meantime,
their supporters in the legislature continue to seek additional
state funds to be used if the federal funding does not
materialize (see video of the hearing, here).
Analysis of reasonably foreseeable actions and reasonably
foreseeable future actions (RFFAs) with potential to impact East Salt
River Valley water supplies is virtually nonexistent from the
cumulative impacts analysis in this DEIS. In addition to having been
previously provided to TNF and SWCA, this information (which is also
widely and publicly available) should have been considered in this
Regarding impacts to East Salt River Valley water supplies, the
DEIS (p. 340-341) devotes one paltry paragraph to setting up a handful
of vague actions and dismissing them all from consideration, stating
Several reasonably foreseeable future actions were identified
during the NEPA process but were determined too speculative to
analyze for cumulative effects without detailed plans. These
include potential housing developments in the town of Florence,
and the ASLD's planned Superstition Vistas development area. A
number of approved, assured water supplies were also identified
in the East Salt River valley, and these describe future use of
water in enough detail to be considered for cumulative effects.
All of these potential future actions have the potential to be
cumulative in combination with the impacts from the Desert
Wellfield, resulting in greater drawdown than projected from
the Resolution Copper Project.
Analysis of ``Affected Environment'' with regard to groundwater
quantity in the East Salt River valley is a superficial three-paragraph
overview which does not meaningfully discuss past and present actions
in the region. The brief content does not meaningfully describe or the
affected environment at all. Considering the enormous quantity of
project water, which is planned to be extracted from this region, the
DEIS must be corrected to properly analyze existing environmental
characteristics as well all past, present and future reasonably
foreseeable actions. The failure to do so violates NEPA.
e. Analysis of water quality in the DEIS is inadequate.
Additionally, evidence to date raises significant question whether
the Resolution Copper Mine will be issued a Clean Water Act 404 permit
by the Army Corps due to threats to the quality of surface and
groundwaters, lack of consultation pursuant to Section 7 of the
Endangered Species Act, and insufficient Tribal consultation, among
other concerns (see full discussion of Sec. 404 certification at
section IV above). The Army Corps is separately evaluating Resolution
Copper's application. Furthermore, an essential part of the 404 permit
process is Clean Water Act Section 401 certification by the Arizona
Department of Environmental Quality that the activities authorized by
the 404 permit will not violate state water quality standards. Since
Resolution Copper has yet to obtain either permit, the DEIS is
inadequate because it fails to consider these issues, including the
foreseeable possibility that the Corps will deny a 404 permit or will
condition it significantly on altered operations of the mine. The DEIS
must be revised, or a supplemental DEIS must be prepared, for public
comment to consider the impacts of the 404 permit and the 401 state
certification, both of which may be denied.
As discussed by hydrologist Bob Prucha in his expert report
(attached in full here), analysis of groundwater in the DEIS is
insufficient for many reasons, including but not limited to the
1. The formation of a pit lake wasn't evaluated and is a major
oversight of the DEIS (see Section 2.7.7).
2. Identification of impacted Groundwater-Dependent Ecosystems
(GDEs) is lacking (see Section 2.1).
3. Groundwater model development and calibration are flawed and
predicted impacts to GDEs are unreliable and highly
uncertain (see Sections 2.5, 2.6 and 2.7).
4. Groundwater and Surface Water models were created in virtual
isolation from each other, despite clear evidence that the
two are coupled in key GDE locations. Evaluation of impacts
to stream-aquifer flows was not assessed, partly because
hydrologic modeling software selected doesn't have the
capability of simulating this critical dynamic flow
process. Inappropriate codes were used to assess impacts
(see Section 2.4).
Additionally, the DEIS (pp. 368-369) wrongfully attempts to draw
meaningful conclusions about surface water quality characteristics for
two sampling locations for which only one surface water sample has been
collected (the Gila River below Donnelly Wash, and the Gila River below
Dripping Spring Wash). Additionally, the DEIS notes that an undisclosed
number of monitoring wells have been constructed in the Near West area
in 2016 and 2017, but that ``[g]roundwater quality results from these
wells have not yet been submitted'' (p. 367). Furthermore, the DEIS
contains no information at all about what levels of contaminants from
mine discharges, runoffs, seepage, or otherwise may be, or how and
where these may impact surface waters and to what levels (DEIS pp. 369-
370). Finally, the DEIS fails to independently study or even closely
evaluate Resolution's surface water sampling--rather, it accepts its
conclusions about surface water chemistry without question which is
entirely contrary to the foundational purpose of NEPA. All of this is
inadequate, unscientific, and indicates a major failure to collect
necessary data to conduct a reliable NEPA analysis. The DEIS should be
redone to correct these failings.
f. Assessment of water quality degradation in the DEIS is
The DEIS (p. 364) wrongly says that ``Resolution Copper is not
proposing any direct discharges to surface waters.'' A similar
incorrect characterization can be found at p. 370. This is simply not
correct. Resolution Copper has applied for and holds Arizona Pollutant
Discharge Elimination System (AZPDES) Permit No. AZ0020389 issued by
the Arizona Department of Environmental Quality (ADEQ). Resolution
Copper has applied for this permit to discharge up to 3.6 MGD of water
into Queen Creek, an impaired water body which is listed on the CWA
303(d) Impaired Waters List as required by the EPA. Per the ADEQ Public
Notice circulated on June 8, 2016:
Resolution Copper Mining, LLC applied for a renewal AZPDES
permit for discharge of mine site stormwater from Outfall 001
and treated mine drainage water from Outfall 002 from the
Resolution Copper Mining, LLC-Superior mine. The discharge for
both Outfall 001 and 002 is to an unnamed wash, tributary to
As ADEQ is the very first listed cooperating agency included in the
DEIS (p. 6), information is readily available from ADEQ showing that
RCM intends to and has sought a permit for directly discharging to
surface waters. The DEIS (p. 364) incorrectly states that
``assimilative capacity is the ability for a perennial water to receive
additional pollutants without being degraded.'' This is not correct.
Per the Arizona Administrative Code Section R18-11-107.01(A), Tier 1
antidegradation criteria applies to: ``a. A surface water listed on the
303(d) list for the pollutant that resulted in the listing, b. An
effluent dependent water, c. An ephemeral water, d. An intermittent
water, and e. A canal listed in Appendix B.'' Regarding Tier 1
antidegradation protections, R-18-11-107 states: ``The level of water
quality necessary to support an existing use shall be maintained and
protected. No degradation of existing water quality is permitted in a
surface water where the existing water quality does not meet the
applicable water quality standards.'' As an impaired water body on the
303(d) Impaired Waters List, Queen Creek is subject to the heightened
Tier 1 antidegradation criteria but this analysis is absent from the
DEIS. Meaningful, full, and fair discussion should have been included
in the DEIS on the potential for this project to degrade water quality.
g. The DEIS fails to analyze the impacts of the project on
Queen Creek Reach No. 15050100-014A, (headwaters to the Superior
Wastewater Treatment Plant discharge), has been listed on Arizona's
303(d) list as impaired for dissolved copper since 2002. Reach No.
15050100-014B, (Superior Wastewater Treatment Plant discharge to Potts
Canyon) has been listed as impaired for dissolved copper since 2004.
Reach No. 15050100-014C (Potts Canyon confluence to the Whitlow Dam)
has been listed as impaired for dissolved copper since 2010. As a
condition of these listings, ADEQ is required to prepare a TMDL
analysis for Queen Creek to identify the amount of pollutants the water
body can receive and still meet water quality standards. On October 4,
2017, a draft TMDL analysis was released for public comment and
comments were collected. This TMDL is still not complete.
The DEIS (p. 370) claims that ``only two reaches with the potential
to receive additional pollutants caused by the Resolution Copper
Project are Queen Creek below the Superior Wastewater Treatment Plant,
due to runoff or seepage from Alternatives 2, 3, and 4, and the Gila
River from the San Pedro River to Mineral Creek, due to runoff or
seepage from Alternative 6.'' This is incorrect. Resolution Copper
holds AZPDES permit No. AZ0020389 to discharge dewatered mine project
water into Queen Creek, and has held this permit since 2010. Although
the DEIS (p. 365) acknowledges that TNF is required to identify which
waters have been determined to be impaired, identify specifically where
contaminants from the project could enter those waters and further
pollute waters, and estimate the loading from that impairment, this
analysis was not done as required by law.
Additionally, no discussion at all is provided in the DEIS about
the exact location(s) where contaminants could enter those waters as
seepage or runoff from these tailings alternatives, nor is there any
discussion of attempts to avoid or mitigate such runoff or seepage,
impacts, or the potential levels of loading into each water body
resulting from each of those discharges. Instead, after simply stating
that runoff ``could be captured by the subsidence crater'' (p. 370),
discussion in the DEIS on impacts to impaired waters concludes and is
never meaningfully revisited. This is entirely unacceptable and fails
to comply with the requirements of NEPA at 40 C.F.R. Sec. 1502.14 to
``rigorously explore and objectively evaluate'' all reasonable
h. No analysis was done regarding ongoing dewatering.
In 1998, the Magma Mine was abandoned as a business decision.\36\
Ongoing dewatering in the existing shafts ceased and the shafts filled
with water. Dewatering began again in 2009. As discussed earlier in
these comments, the Oak Flat area groundwater model ``no action'' does
not truly reflect baseline environmental conditions since it includes
these ongoing dewatering activities. This is not a true representation
of the groundwater features of the region. Additionally, impacts from
these ongoing dewatering are never analyzed in the DEIS, since they are
incorrectly assumed to be part of the ``no action'' alternative and
their impacts are subsumed or baked into the environmental baseline.
The decision to bake the impacts of dewatering into the environmental
``no action'' baseline and not analyze the impacts of dewatering is
improper and violates NEPA.
\36\ David F. Briggs, Superior, Arizona: An Old Mining Camp With
Many Lives, Ariz. Geological Survey (Dec. 2015), http://
When an agency is evaluating reasonably foreseeable significant
adverse effects and there is incomplete or unavailable information, the
Council on Environmental Quality's NEPA regulations at 40 C.F.R.
Sec. 1502.22 requires that ``the agency shall always make clear that
such information is lacking.'' Sec. 1502.22(a) states: ``If the
incomplete information relevant to reasonably foreseeable significant
adverse impacts is essential to a reasoned choice among alternatives
and the overall costs of obtaining it are not exorbitant, the agency
shall include the information in the environmental impact statement.''
Pursuant to Sec. 1502.22(b), if that information cannot be obtained
because, ``the overall costs of obtaining it are exorbitant or the
means to obtain it are not known, the agency shall include within the
environmental impact statement,'' the following:
(1) A statement that such information is incomplete or unavailable;
(2) a statement of the relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable
significant adverse impacts on the human environment;
(3) a summary of existing credible scientific evidence which is
relevant to evaluating the reasonably foreseeable
significant adverse impacts on the human environment, and
(4) the agency's evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the
scientific community. For the purposes of this section,
``reasonably foreseeable'' includes impacts which have
catastrophic consequences, even if their probability of
occurrence is low, provided that the analysis of the
impacts is supported by credible scientific evidence, is
not based on pure conjecture, and is within the rule of
Regarding the decision to include continued dewatering as part of
the no action alternative and supposedly disclosing effects of past
dewatering, the DEIS (p. 300) cites Garrett 2018c, which states that
conditions prior to the re-initiation of dewatering in 2009 is
``historic'' and that ``stakeholders did not provide specific
suggestions for how to obtain this historic information.'' No
discussion as required under 40 C.F.R. Sec. 1502.22 appears anywhere in
the DEIS about any attempt to obtain this information. It appears that
no discussion was ever even held with ADWR or ADEQ regarding the
possibility of obtaining this information.
The CEQ NEPA regulations at 40 C.F.R. Sec. 1508.7 require an
assessment of impacts. Despite the fact that dewatering is likely to
cease at a point after mining operations, both of the DEIS groundwater
modeling scenarios included ongoing dewatering in their baseline
conditions (pp. 299-300) thus producing misleading modeling results.
Furthermore, the DEIS refused to look at baseline groundwater
conditions as they existed prior to Resolution Copper's dewatering
activities related to this project. This ``moves the goalposts'' (so to
speak) in a very misleading manner as it does not present an accurate
snapshot of true baseline groundwater conditions. This improperly
places the impacts of dewatering outside the scope of NEPA review,
which is unlawful. The USFS incorrectly attempts to rationalize this by
claiming that even if the mine is not built, Resolution Copper would
keep dewatering indefinitely ``to preserve its infrastructure
investment'' (DEIS p. 300). This statement is factually unsupported for
several reasons, only one of which is that dewatering ceased previously
for business reasons in 1998 and nothing prevents Resolution Copper or
its parent companies from unilaterally deciding again to cease
dewatering operations for business or any other reason. This does not
excuse the requirement to analyze all environmental impacts. Impacts
from dewatering should have been fully analyzed in the DEIS.
i. The groundwater model for the Oak Flat parcel area ``mine
site'' is deficient.
Chapter 3.7 on Water Resources is full of assurances about the
water model but fails to meaningfully address or remedy any of its
weaknesses or failures. This is incredibly problematic, since the same
model failed to predict the existence of 500-1000 GPM of 170-degree
water encountered while drilling the #10 mine shaft in 2014.\37\
\37\ Feature: Sinking America's deepest shaft, E&MJ (Engineering
and Mining Journal) (Apr. 2014), https://www.e-mj.com/features/sinking-
The groundwater model limitations were not meaningfully analyzed.
The DEIS contains no discussion at all about the limitations of the
chosen groundwater model. Assessments of the groundwater model selected
for this project and its underlying assumptions are reportedly
contained in the report cited as BGC Engineering USA Inc. 2018a (p.
296)--yet--this cited report is not about water at all--it is about
geological data and subsidence and contains no discussions whatsoever
about hydrology or groundwater modeling. A review of the other cited
BGC Engineering studies (in an attempt to ``guess'' what the DEIS
intended to cite) shows that while one report was published on the
groundwater model, it addressed only the mine subsidence area and did
not address the MARRCO wellfield, any of the tailings alternatives, or
any other project areas at all. Review of this study is disappointingly
inadequate, as several of the meaningful conclusions and concerns in
this study are disregarded and not adopted in the DEIS. This violates
requirements under NEPA for the preparation of EIS documents and it
fails to provide the public with sufficient information to meaningfully
comment on the proposal. This also indicates, once again, the rushed
nature of the DEIS and the failure of the TNF to take the requisite
``hard look'' under NEPA.
In addition to the foregoing, no meaningful analysis has been done
regarding potential groundwater drawdowns. The DEIS (p. 334) asserts
the following: ``[P]redicted groundwater level trends indicate that the
maximum drawdown would not occur [ ... ] for roughly 500 to 900 years''
and cites a document referred to as Morey 2018c in support of these
figures. If Morey 2018c is reviewed in an attempt to understand why
this such large, rough range is given for a very important issue like
groundwater drawdown, the reviewer finds that no meaningful, reliable
scientific support exists for this figure. Morey 2018c consists of
rough, unedited ``meeting minutes'' with incomplete phrases and
sentences in which no particular speaker is even listed for points
raised. Assertions in the DEIS about groundwater drawdown cite this
document, but a review of its contents indicate that it does not lend
scientific support to this statement. Again, ``[a]ccurate scientific
analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA.'' 40 C.F.R. Sec. 1500.1. This has not been done in
Nearly all of the background environmental groundwater descriptions
for the East Plant Site (pp. 304-306) are copied from Resolution
Copper's GPO with no additional citations or discussions about the
veracity of the data in the GPO. In comparing this section of the DEIS
to the same section in the GPO, it is evident that the DEIS copied and
pasted this section from the GPO. No independent verification or study
to corroborate the information is cited anywhere in this section. This
is contrary to the purpose of NEPA, which in part, requires the TNF to
independently evaluate the environmental impacts of a proposed action.
It is disturbing that the TNF would forego its clear obligations under
NEPA and simply adopt Resolution Copper's text on the nature of
groundwater features in the project area without conducting any
independent verification, particularly since (as previously discussed),
RCM's water model failed to predict 600 GPM, 170 degree hot water when
sinking shaft #10.
The Conceptual Cross Section of the Groundwater Systems (see
figure 3.7.1-4, DEIS p. 305, reproduced above) shows no scale on either
the X or Y axes. There is no way at all of knowing what depths or
distances across, the data is meaningless without any of this. Despite
a title referring to ``Groundwater Systems,'' the figure shows
primarily geological features and only a thin floating line segments
(with no axes to indicate location) to show water table locations. This
image was taken from the General Plan of Operations and used here in
the DEIS without any of these shortcomings being addressed.
j. Assessment of water quality on Alternative 6 (Skunk Camp) is
Water quality data for Alternative 6 (Skunk Camp) tailings site is
both incomplete and severely inadequate. Regarding Skunk Camp tailings
site, the DEIS (p. 358) reveals the following: ``Background groundwater
quality is derived from a single sample in November 2018 from a well
located adjacent to Dripping Spring Wash. Background surface water
quality is derived from a single sample in November 2018 from the Gila
River at the confluence with Dripping Spring Wash.''
``Accurate scientific analysis, expert agency comments, and public
scrutiny are essential to implementing NEPA.'' 40 C.F.R. Sec. 1500.1.
Agencies are ``under an affirmative mandate to `insure the professional
integrity, including scientific integrity, of the discussions and
analyses in environmental impact statements[,] identify any
methodologies used and . . . make explicit reference by footnote to the
scientific and other sources relied upon for conclusions[.]' 40 C.F.R.
Sec. 1502.24.'' Environmental Defense Fund v. U.S. Army Corps of
Engineers, 515 F. Supp. 2d 69 (D.C. Dist. Ct. 2007). As such, no
meaningful analysis can be done or conclusions drawn based upon a
single sample. No explanation was given as to why only single samples
were collected. This is extremely deficient and fails on its face to
meet any level of integrity or scientific reasonability, let alone
proper analysis under NEPA.
The DEIS (p. 363) states: ``Alternatives 5 and 6 not only meet
water quality objectives as modeled but have substantial additional
capacity to do so, and flexibility.'' This section on ``Conclusion as
to reasonableness of models,'' a critical section, is unfinished in the
DEIS and ends with this truncated sentence. Both the failure to even
complete this section in the DEIS and the incomplete water quality data
for Alternative 6 precludes any meaningful analysis or opportunity for
comment on an obviously incomplete section, in violation of NEPA.
k. The DEIS does not outline any monitoring or mitigation plans
for water resources.
It is well settled under NEPA that a mere perfunctory description
of mitigating measures is inconsistent with the ``hard look'' TNF is
required to take under NEPA. Rather, ``[m]itigation must `be discussed
in sufficient detail to ensure that environmental consequences have
been fairly evaluated.' '' City of Carmel-By-the-Sea v. U.S. Dep't of
Transp., 123 F.3d 1142, 1154 (9th Cir. 1997) (quoting Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 353, 104 L. Ed. 2d 351,
109 S. Ct. 1835 (1989)). ``A mere listing of mitigation measures is
insufficient to qualify as the reasoned discussion required by NEPA.''
Northwest Indian Cemetery Protective Ass'n. v. Peterson, 795 F.2d 688,
697 (9th Cir. 1986), rev'd on other grounds, 485 U.S. 439, 99 L. Ed. 2d
534, 108 S. Ct. 1319 (1988). Indeed, the Supreme Court has emphasized
the importance of the mitigation requirement: ``Omission of a
reasonably complete discussion of possible mitigation measures would
undermine the `action forcing' function of NEPA. Without such a
discussion, neither the agency nor other interested groups and
individuals can properly evaluate the severity of the adverse
effects.'' Methow Valley Citizens Council, 490 U.S. at 352.
Regarding limitations of the mine site groundwater model, the DEIS
(pp. 295-296) says that ``regardless of what the model might predict, a
monitoring plan would be implemented to ensure that actual real-world
impacts are fully observed and understood.'' First, ``would be
implemented'' is not as affirmative as stating that it ``would'' or
``shall'' be, which is a matter of concern. Further, no timeline is
given at all here for what the monitoring plan is, who would oversee it
and for how long, or even when it would be implemented (1 year? 10?
100?). Additionally, no explanation is given about what is meant by
``real-world impacts.'' Finally, what steps would be taken if an impact
occurs which is not predicted by the model? None of these points are
addressed. This is insufficient under NEPA.
The monitoring plan, if indeed one even exists at all, has not been
provided as part of this DEIS for public comment. The groundwater
models in this project, for reasons including as discussed herein, are
flawed and based upon problematic assumptions which raise concerns
about the reliability of their predictions. Monitoring and mitigation
plans should have been meaningfully discussed, analyzed, and included
in the DEIS in full for public review and comment. Anything short of
this violates NEPA.
Regarding limitations of the East Salt River Valley groundwater
model, the DEIS (p. 303) says again that ``if monitoring identifies
real-world impacts that were not predicted by the modeling, mitigation
would be implemented.'' Since mitigation plans have not yet been
written, the DEIS failed to outline any mitigation details or analyze
their sufficiency. Again, it is still unclear what is meant by ``real-
world impacts.'' Additionally, the groundwater models in this project,
for reasons including as discussed herein, are flawed and based upon
problematic assumptions which raise serious concerns about the
reliability of their predictions. This is insufficient pursuant to
notice and comment requirements under NEPA. Monitoring and mitigation
plans should have been included in the DEIS for public comment.
Appendix D of the DEIS, the Draft Conceptual Compensatory Mitigation
Plan, should have analyzed these concerns pursuant to Army Corps 404
3. Biological Resources
a. The DEIS fails to analyze specific project impacts on Bald and
Golden Eagles or other raptors, discuss mitigation, or the
potential necessity of a take permit under BGEPA, MBTA, or
other applicable law.
The Bald and Golden Eagle Protection Act (``BGEPA''), 16 U.S.C.
Sec. 668-668d, protects eagles by prohibiting unauthorized take (which
includes to pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, molest or disturb) of eagles, unless allowed by a
permit. The Migratory Bird Treaty Act (``MBTA''), 16 U.S.C.
Sec. Sec. 703-712, similarly protects certain migratory birds by
prohibiting unauthorized take, possession, import, export, transport,
sale, purchase, barter, or offer for sale any migratory birds or bird
parts, nests, or eggs except under the terms of a permit. As discussed
above, Eagles also play a significant role in the religious, cultural,
and traditional practices of many Tribes and are TCPs.
Table 3.8.4-2 of the DEIS (p. 466) notes that modeled habitat
acreage for the Golden eagle (Aquila chrysaetos) appears in all
alternatives. The word ``Yes'' is marked next to BGEPA, yet the
remainder of the DEIS does not contain any information about whether a
take permit for RCM has been discussed, applied for, evaluated, or
otherwise by any of the involved parties in this project. Failure to
apply for and obtain a take permit violates BGEPA. Additionally, as
discussed above, eagles are considered traditional cultural properties
(TCP) subject to NRHP Sec. 106 and impacts to those TCPs must be
considered as part of the NEPA process. This has not been done in the
While the Resolution Copper mine is likely to impact eagles,
raptors, and avian species, specific analysis of these impacts
(including avoidance, mitigation, or otherwise) is largely missing from
the DEIS. The DEIS (p. 460) states vaguely that concentrations of
certain constituents in tailings seepage ponds above chronic and some
acute exposure limits may ``lead to short- and long-term impacts on
some avian species'' and cites a document titled Screening of
Geochemistry Predictions for Effects on Wildlife Process Memorandum by
Newell 2018k. However, this citation poses several concerns, namely:
There is no study with that title posted on the project
webpage under the Documents Cited page.
There is no specific reference in this section to what
types of avian species would be affected, what levels of
mortality are anticipated, and if any threatened/
endangered/protected species may be impacted.
Additionally, there is no reference at all to any take
permits, or any mitigation of the impacts to avian species
from the constituent levels in these tailings seepage
Finally, there is no data on how much higher constituent
concentrations are expected to be above these chronic and
acute exposure levels.
A different document titled Wildlife Resource Analysis:
Assumptions, Methodology Used, Relevant Regulations, Laws,
and Guidance, and Key Documents by Newell 2018i notes that
``Bald and golden eagle habitat occurs within the
Resolution Copper Project analysis area for wildlife'' but
no actual analysis on this is done either in this document
or the DEIS. Additionally, the ``analysis area'' does not
cover the entire project area and notably excludes power
line corridors and rights-of-way.
The DEIS (p. 461) notes that project operations and maintenance may
result in ``electrocution of birds and from striking electrical
distribution lines,'' but asserts vaguely and without support that
impacts will supposedly be minor, and not significant.
Table 3.8.4-2 (p. 466) does not contain any information
whatsoever about species occurring in the main project area
(East Plant Site or West Plant Site), the MARRCO well
recovery field, the filter plant and loadout facility, any
pipelines and transmission lines, etc., only for the
The DEIS (p. 458) adopts RCM's promise verbatim that electric power
transmission and distribution line towers will be designed and
constructed ``to avoid raptor electrocutions'' and cites the GPO and
Appendix X, Wildlife Management Plan, Resolution Copper 2016c.
First, the word ``raptor'' does not appear anywhere in the
document cited as Resolution Copper (2016c). Section 3.1.1
of Resolution Copper (2016c) on Avian Species does not name
any specific avian species.
The DEIS makes no effort to define what species of raptors
would be impacted or avoided.
The DEIS improperly excluded power line analysis from the
NEPA review process, as discussed further herein. Review of
these construction designs should have been done as part of
this DEIS and failure to include this is contrary to NEPA.
No information is provided here about which types of
raptors, how RCM plans to design its facilities to avoid
electrocutions while still complying with other design
Finally, although many project activities have the potential or
likelihood to pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, molest or disturb, the DEIS fails to analyze any other
direct, indirect, or cumulative project impacts on Bald and Golden
eagles, protected migratory birds or other avian/raptor species from
project activities such as project light and noise, vibration, air
quality issues, water quality issues, construction, subsidence,
dewatering and water withdrawal, and otherwise.
b. Sonoran Desert Tortoise & Gila Monster
The DEIS (p. 458) indicates only that pre-construction surveys for
Sonoran desert tortoise and Gila monster will be conducted ``before
surface ground-disturbing activities start,'' which means that they
have not been done. This is improper under NEPA since these surveys
should have been done during the NEPA process and subject to public
comment. A vague promise to conduct important surveys after-the-fact on
lands which, in part, will likely have already been transferred out of
state and federal jurisdiction and into private ownership of Resolution
Copper is grossly inadequate for the purposes of NEPA review. Regarding
mitigation and avoidance, the DEIS (p. 458) merely states that project
crews will be ``instructed'' to look below construction equipment for
these species and to move them out of harm's way if observed. This
insufficient for the purposes of mitigation under NEPA.
c. ``Habitat Blocks'' are used to discuss wildlife, this term is
The DEIS (p. 454, 459, and Table 3.8.4-1 at pp. 464-465) refers to
something called a ``habitat block,'' citing Perkl 2013 as a supporting
document for more information about this term. However, the Perkl 2013
document does not contain the phrase ``habitat block'' anywhere. Table
3.8.4-1 references ``Habitat Block 1'' and ``Habitat Block 2'' and
cites Morey 2018a, but these terms are not defined anywhere in the
DEIS, nor does it appear anywhere in the cited document (Morey 2018a).
Table 3.8.4-1 is useless for purposes of NEPA without any supporting
information about the meaning and scope of its contents. The inaccurate
and incomplete citation work in this DEIS makes it impossible to
meaningfully research and comment on matters in the document such as
this. This sort of failure under NEPA permeates the entire DEIS.
40 C.F.R. Sec. 1502.24 requires agencies to ``insure the
professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements. They shall
identify any methodologies used and shall make explicit reference by
footnote to the scientific and other sources relied upon for
conclusions in the statement. An agency may place discussion of
methodology in an appendix.'' See also Forest Service Handbook 1909.15,
Chapter 20, Sec. 23.33.
The DEIS (p. 481) also states that thousands of acres of ``various
habitat'' would be forever impacted, ``may never return to pre-mining
conditions'' and irreversibly reduce habitat quality. TNF claims to
know the specific habitat acreage of all individual species for all of
the tailings alternatives (Table 3.8.4-2), yet does not make any
attempt to list any of the species whose habitat would be forever
diminished or how these impacts would be mitigated. Again, this is
insufficient under NEPA.
4. The USFS jurisdiction is mischaracterized.
The DEIS inaccurately states that the Forest Service will no longer
have jurisdiction over forest lands impacted by the land exchange (p.
14). This is inaccurate. The land exchange will impact a significant
area of Forest Service lands remaining under Forest Service
jurisdiction, including but not limited to pipeline rights of way,
roads, power line corridors, and areas which will experience water and
air impacts. The TNF cannot legally cede this jurisdiction or avoid
consideration of direct, indirect, and cumulative actions associated
with the project on these lands under existing laws and NEPA. Any
attempt to do so is inconsistent with Federal law.
5. Long-Term Effects and Reasonably Foreseeable Actions
It is established that ``an agency cannot defer analyzing the
reasonably foreseeable environmental impacts of an activity past the
point when that activity can be precluded.'' WildEarth Guardians v.
Zinke, 368 F.Supp. 3d 41 at 65 (D.C. Dist. Ct. 2019). Analysis of
reasonably foreseeable future actions or RFFAS (defined as ``[t]hose
Federal or Non-Federal activities not yet undertaken, for which there
are existing decisions, funding, or identified proposals'' at 36 C.F.R.
Sec. 220.3) is a mandatory component of the cumulative impact analysis
required as part of NEPA. 40 C.F.R Sec. 1508.7 further specifies that
this is required ``regardless of what agency (Federal or non-Federal)
or person undertakes such other actions.'' Therefore, an incomplete
analysis of RFFAs indicates that the legally required cumulative
impacts analysis is also incomplete.
The DEIS (pp. 476-477) lists only a handful of reasonably
foreseeable future actions as likely to occur in conjunction with the
mine project, and omits major actions which the TNF was or should have
been aware of at the time this DEIS was released. For instance, as
discussed earlier in this comment document, the Arizona Lower Basin
Drought Contingency Plan with extensive media coverage and political
discussions leading up to the signing of approval legislation in
January 2019. Among many other provisions, approximately $14 million
was appropriated by the State of Arizona and Central Arizona Project
for rehabilitation of existing wells and construction of new wells,
particularly by agricultural users in Pinal County who will begin
pumping using groundwater resources. An additional $25 million in
federal funding for these purposes is being pursued, for the purpose of
recovering stored groundwater in Pinal County. As has been widely,
extensively, and publicly discussed, inevitable shortages on the
Colorado River in the coming years will result in cuts to CAP
allocations. For Pinal County agricultural water users, this loss of
CAP water will be replaced by pumped groundwater from the East Salt
Both existing decisions and funding exist on this plan
(requirements under 36 C.F.R. Sec. 220.3) and yet it was improperly
omitted from analysis in the DEIS. The DEIS (p. 479) states that other
projects ``not yet planned'' are expected to occur in this portion of
Arizona, but fails to list what those projects are, or acknowledge
whether any decisions have been made or funding appropriated for those
projects. If so, then those projects have been improperly omitted from
the DEIS as potential RFFAs.
6. Proper analysis has not been done on the power infrastructure,
rights-of-way, and associated transmission infrastructure
required for this project.
The DEIS specifies that two new 230kV transmission line corridors
will be required for the Resolution mine project. One will run from the
Silver King substation to the Oak Flat substation and the other will
run from the RCM West Plant site to the Oak Flat substation. The DEIS
lists activities which would be included in mine operations and says
(p. 9) that ``the Forest Service can approve SRP's construction and
operation of new power lines on NFS lands by either a special use
permit or as part of the GPO.'' The document continues on to say that
the line rights-of-way are analyzed in the DEIS. This is untrue. No
discussion appears anywhere in the DEIS looking at impacts of these new
and expanded rights-of-way on things such as wildlife and vegetation,
visual impacts, cultural resource, air quality or other resources found
within these rights-of-way.
More power infrastructure than just rights-of-way will be
constructed. The DEIS (p. 42) states that auxiliary facilities would be
constructed to support underground mine workings, including
``electrical substations, along with transmission and distribution
systems, to provide power to the underground facilities and
equipment.'' The DEIS (p. 56) states: ``[s]ubstations also would need
to be upgraded and/or new 230-kV substations would need to be
constructed.'' First, upgrading the existing 115kV transmission lines
is impossible since those existing lines must remain in place, and so
new rights-of-way will need to be constructed. Second, even if the
existing 115kV transmission lines were to be replaced with 230kV
transmission lines (which they are not), the total footprint for 230kV
lines is much larger than 115kV lines and thus, new analysis would be
required in either case.
An entirely new transmission line would be required for Alternative
6 (Skunk Camp) tailings location, if chosen. As the DEIS (pp. 97-98)
states: ``A new power line would be constructed from the existing
Silver King substation north of U.S. 60 and Oak Flat that would follow
a southeast alignment for 11.7 miles to the Skunk Camp location.
Preliminary assessment of line voltage options show that either a 69-kV
or 115-kV voltage level would be adequate to supply power to Skunk
Camp. Further assessment by the electrical utility operating Silver
King substation would be needed to determine the adequate voltage and
construction engineering, including access roads to service Skunk
Camp.'' The DEIS fails entirely to analyze this obvious requirement
that a new substation would also be required at this site to convert
the high-voltage power being transmitted through the transmission lines
into distribution voltages for use.
As discussed earlier, since only a single EIS is being done for all
components of this project, details regarding this new transmission
line including ``construction engineering'' should have been fully
analyzed in this DEIS and subject to public review and comment,
including by those who may be affected by it.
In a similar way, the new 69kV transmission line along the MARRCO
corridor and the new 69kV substation near the loadout facility also
requires (and currently lacks any) thorough NEPA analysis for possible
impacts to wildlife, air, water, cultural and historic resources, and
other possible impacts. The DEIS vaguely mentions these requirements,
but fails completely to consider their impacts or any other required
treatment under NEPA. Section Sec. 3003(c)(9)(B) specifically
referenced power infrastructure as a component of the single EIS,
stating that the granting of any ``permits, rights-of-way, or approvals
for the construction of associated power'' shall be based on this
single EIS. As noted in some detail at the outset of these comments,
all of this must be included in the current EIS under the NDAA and as a
connected action. The failure violates existing law and NEPA.
7. Cumulative Effects Analysis is Insufficient.
There is also an inadequate scope of inquiry and analysis into the
cumulative effects. As discussed throughout ITAA's comments, in many
sections of the DEIS, some listing of actions is provided for the
purpose of a cumulative effects analysis but there is a failure to
provide the actual analysis. Mere identification of other actions
affecting the resources which would be affected by the proposed action
(as is done in many places in this DEIS) is only the first step toward
an actual analysis. However, there is scant substantive and meaningful
analysis in the text of this DEIS, and in many places, analysis is
``NEPA's implementing regulations require an agency to evaluate
`cumulative impacts' along with the direct and indirect impacts of a
proposed action.'' Taxpayers of Mich. Against Casinos v. Norton, 433
F.3d 852 at 864 (citing Grand Canyon Trust v. FAA, 290 F.3d 339, 345,
(D.C. Cir. 2002)). As defined at 40 C.F.R. Sec. 1508.7, cumulative
impact means ``the impact on the environment which results from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) or person undertakes such actions. Cumulative
impacts can result from individually minor but collectively significant
actions taking place over a period of time.''
As described throughout this comment letter, the DEIS fails in
several ways to evaluate the cumulative impacts of the proposed mine on
the environment. First, there is insufficient identification of past,
present, and reasonably foreseeable actions that continue to have, are
having, or likely to have an impact on the same resources that would be
affected by the proposed Resolution Copper mine. The DEIS never
discusses these in any comprehensive or meaningful way, and only lists
a few reasonably foreseeable future actions in piecemeal, stating in
several places that ``As noted in section 3.1, past and present actions
are assessed as part of the affected environment.'' (DEIS pp. 206, 233,
269, 292, 340, 419, 444, 476, 509, 554, 572, 582, 619, 636, 656, 668,
684, and 700). No comprehensive analysis of the ``Affected
Environment'' ever appears in the DEIS, instead is confusingly
segmented under specific topics for no apparent reason (DEIS pp. 134,
165, 215, 246, 280, 303, 366, 424, 451, 484, 520, 562, 576, 588, 625,
641, 661, 675, 689). Each of these sections contains only a few
perfunctory, non-substantive paragraphs containing little to none of
the promised analysis of past and present actions.
Particularly with regard to water, the DEIS entirely fails to
evaluate ``past'' and ``present'' dewatering actions undertaken by
Resolution Copper; fails to evaluate ``reasonably foreseeable future''
Colorado River shortages and cuts, as well as those events that will
take place once shortages occur. It also fails to look at the project's
impact on regional water resources when combined with these shortages;
fails to evaluate the formation and chemical composition of a
subsidence pit lake, fails to analyze future potential spills and
breaches from its tailings dams, and many other actions discussed in
Mere vague reference to cumulative impacts without discussion or
analysis is not adequate for purposes of NEPA. Failure to take this
``hard look'' at environmental impacts violates NEPA.
In a cumulative impact analysis, an agency must take a ``hard
look'' at all actions. An EA's analysis of cumulative impacts
``must give a sufficiently detailed catalogue of past, present,
and future projects, and provide adequate analysis about how
these projects, and differences between the projects, are
thought to have impacted the environment.'' Lands Council, 395
F.3d at 1028. ``General statements about `possible effects' and
`some risk' do not constitute a `hard look' absent a
justification regarding why more definitive information could
not be provided.'' Neighbors of Cuddy Mountain, 137 F.3d at
1380. ``[S]ome quantified or detailed information is required.
Without such information, neither the courts nor the public . .
. can be assured that the [agency] provided the hard look that
it is required to provide.'' Id. at 1379.
Te-Moak Tribe of Western Shoshone v. Dept. of Interior, 608
F.3d 592, 603 (9th Cir. 2010).
For example, regarding Alternative 6 (Skunk Camp), the DEIS states
that more than 300 archaeological sites would be impacted and ``may be
lost completely,'' but since the Tribal Monitor study of the Skunk Camp
tailings site is ongoing, ``full impacts for this alternative are still
unknown'' and that ``indirect impacts for Alternative 6 are the same as
for Alternatives 2, 3, and 5.'' (DEIS p. 668). How impacts to two
completely different sites can have ``the same'' impacts are never
explained; this conclusory statement appears intended to gloss over the
gross failings under NEPA relative to the Alternative 6, which is a
violation of the ``hard look'' requirement under NEPA.
8. Monitoring and Mitigation is Insufficient.
The identification of possible mitigation measures is an integral
and important part of NEPA analysis. While NEPA does not require
mitigation, it does require the identification of possible mitigation
measures for adverse environmental impacts. As the U.S. Supreme Court
Implicit in NEPA's demand that an agency prepare a detailed
statement on `any adverse environmental effects which cannot be
avoided should the proposal be implemented,' 42 U.S.C.
Sec. 4332(C)(ii), is an understanding that the EIS will discuss
the extent to which adverse effects can be avoided. [cite
omitted] More generally, omission of a reasonably complete
discussion of possible mitigation measures would undermine the
`action forcing' function of NEPA. Without such a discussion,
neither the agency nor other interested groups and individuals
can properly evaluate the severity of the adverse effects. An
adverse effect that can be fully remediated by, for example, an
inconsequential public expenditure is certainly not as serious
as a similar effect that can only be modestly ameliorated
through the commitment of vast public and private resources.
Recognizing the importance of such a discussion in guaranteeing
that the agency has taken a `hard look' at the environmental
consequences of proposed federal action, CEQ regulations
require that the agency discuss possible mitigation measures in
defining the scope of the EIS, 40 C.F.R. Sec. 1508.25(b)
(1987), in discussing alternatives to the proposed action
Sec. 1502.14(f), and consequences of that action,
Sec. 1502.16(h), and in explaining its ultimate decision,
Sec. 1505.2(c). Robertson v. Methow Valley Citizens Council,
490 U.S. at 352 (1989).
A mere perfunctory description of mitigation measures is
inconsistent with the ``hard look'' the USFS is required to take under
NEPA. Rather, ``[m]itigation must `be discussed in sufficient detail to
ensure that environmental consequences have been fairly evaluated.''
City of Carmel-By-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1154
(9th Cir. 1997) (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 353 (1989)). ``A mere listing of mitigation measures is
insufficient to qualify as the reasoned discussion required by NEPA.''
Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688,
697 (9th Cir. 1986) (rev'd on other grounds), 485 U.S. 439 (1988).
As noted earlier, the DEIS's identification of mitigation measures
for the many severe adverse impacts identified in the document is
extremely deficient. The DEIS (p. 159) even states that the USFS'
mitigation plan is not yet complete but that it is ``in the process of
developing'' that plan. Appendix J Mitigation and Monitoring Plan is
actually not a plan at all, but rather is described in the DEIS (p.
159) as merely ``descriptions of mitigation concepts being
considered.'' Furthermore, any voluntary mitigation and protection
measures proposed by Resolution Copper are uncertain by definition:
The ``voluntarily'' raised suggestion to move the process
water pond (DEIS p. 100);
Resolution Copper's promise to ``voluntarily'' follow
industry best practices (DEIS p. 520);
``[R]echarging water and acquiring storage credits [ ... ]
is a voluntary measure by Resolution Copper'' (DEIS p.
Groundwater sampling and ongoing cleanup at the West Plant
Site is ``voluntary'' (DEIS p. 367);
Study and remediation of contaminated soils at the West
Plant Site is being done ``under the authority of the ADEQ
Voluntary Remediation Program'' (DEIS p. 577);
Resolution Copper ``would voluntarily commit to
conservation actions'' with regard to stock tanks, AZGFD
wildlife waters, and the conservation needs of proposed or
candidate species of wildlife including the Sonoran Desert
Tortoise, and bats (DEIS p. 480; Appendix J, pp. J-11, J-
None of these should be considered as reliable ``concepts'' (let alone
plans) for mitigation under NEPA.
For a number of serious impacts, there are simply no mitigation
measures identified in the DEIS. This is particularly true with regard
to cultural and historic resources and the religious freedom of
impacted tribal members. Also, in several sections, such as water, the
mitigation that is proposed is severely inadequate. Since mitigation is
currently only in the ``consideration'' phase as a discussion of
``concepts,'' the enforceability of certain measures for a number of
types of impacts is never addressed, and where addressed, is
meaningless without an actual, identified, mitigation plan. Again, this
Similarly, there is little to no discussion of monitoring for many
affected resources in the DEIS (including but not limited to the
impacts of water use in the MARRCO wellfield). Thus, the public has no
way of commenting on whether and how the TNF, other involved public
agencies and the affected communities could determine whether any
mitigation ``concepts'' (if ever even selected and developed as
mitigation plans) would ever actually be implemented and, if so, what
their effectiveness might be over the lifetime of the proposed mine and
following its shutdown. These failures violate NEPA and the USFS
obligations. See Neighbors of Cuddy Mountain v. U.S. Forest Service,
137 F.3d 1372 at 1381; see also Klamath-Siskiyou Wildlands Ctr. v.
Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004) (rejecting as
insufficient an environmental assessment that failed to meaningfully
analyze mitigation measures where the agency concluded that the
``[i]mpacts are being avoided by project design,'' because ``[t]he
EA[s] are silent as to the degree that each factor will be impacted and
how the project design will reduce or eliminate the identified
An essential component of a reasonably complete mitigation plan
must include an assessment of whether the proposed mitigation measures
can be effective. Compare Neighbors of Cuddy Mountain v. U.S. Forest
Service, 137 F.3d 1372, 1381 (9th Cir. 1998) (disapproving an EIS that
lacked such an assessment) with Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 477 (9th Cir. 2000) (upholding an EIS where
``[e]ach mitigating process was evaluated separately and given an
effectiveness rating''). The Supreme Court has required a mitigation
discussion precisely for the purpose of evaluating whether anticipated
environmental impacts can be avoided. See Methow Valley, 490 U.S. at
351-52 (citing 42 U.S.C. Sec. 4332(2)(C)(ii)). A mitigation discussion
without at least some evaluation of effectiveness is useless in making
that determination under NEPA. None of these requirements were met in
the DEIS and they are not being met today.
In short, broad generalizations and vague references to mitigation
``concepts being considered'' by the USFS in the DEIS do not constitute
the requisite detail that is required by NEPA and other applicable
laws, since they fail to disclose at any level of specificity what
mitigation measures would be undertaken and the potential effectiveness
of these measures. At this phase in the Project, USFS's failed approach
to mitigation is simply unacceptable. The DEIS must be redone for these
reasons stated herein.
The broad generalizations and vague references in the DEIS to
potential monitoring and mitigation measures that may be used in the
future also do not address all of the known impacts of the project, and
thus fail to provide sufficient detail and certainty relative to
This DEIS contains numerous failures and inadequacies. Analysis of
impacts, mitigation, and other mandatory components of NEPA are absent
from the document on major points of concern. Whether the TNF was
subject to political pressure to produce this DEIS document too early
or whether it simply has just grossly failed in its efforts, either way
the TNF must return to the drawing board and produce a proper DEIS
which fully complies with the requirements of NEPA and Sec. 3003 of the
ITAA appreciates this opportunity to provide comments to the TNF on
the Draft Environmental Impact Statement on behalf of our 21 Member
Please direct any questions or concerns to Ms. Maria Dadgar, ITAA
Executive Director at (602) 258-4822.
President, Inter Tribal Association of Arizona
Vice-Chairman, Fort Mojave Indian Tribe
cc: ITAA Executive Committee
Department of the Army, Los Angeles District
U.S. Army Corps of Engineers, Regulatory Division
Attn: Michael Langley
3636 N. Central Ave., Suite 900
Phoenix, AZ 85012-1939
Kathryn Leonard, State Historic Preservation Office
INTER TRIBAL ASSOCIATION OF ARIZONA
21 TRIBAL NATIONS
Support for Repeal of Section 3003 of the FY 2015 National Defense
Authorization Act, the Southeast Arizona Land Exchange
WHEREAS, the Inter Tribal Associa6on of Arizona, an association of 21
tribal governments in Arizona, provides a forum for tribal governments
to advocate for national, regional and specific tribal concerns and to
join in united action to address these issues; and
WHEREAS, the Member Tribes of the Inter Tribal Association of Arizona
have the authority to act to further their collective interests as
sovereign tribal governments; and
WHEREAS, the Inter Tribal Association of Arizona has the charge to
support and represent particular Member Tribes on matters directly
affecting them upon their request;
WHEREAS, through treaties with the United States, federal laws
mandating the allotments of Indian lands, and other U.S. takings,
tribal governments ceded and had taken hundreds of millions of acres of
tribal homelands to help build this Nation; and
WHEREAS, federal lands are carved out of the ancestral lands of Indian
tribes, although the historical and spiritual connections of Native
Americans to these lands have not been extinguished; and
WHEREAS, some of these lands contain the remains of our ancestors and
Native Americans continue to pray, hold ceremonies, and gather
traditional and medicinal plants on these lands; and
WHEREAS, the United States Government has legal and moral obligations
to provide access to Native Americans and to protect these traditional
cultural territories in a manner that respects the cultural,
historical, spiritual and religious importance of these lands to Indian
WHEREAS, for more than ten years, Congress considered and rejected
legislation titled the ``Southeast Arizona Land Exchange and
Conservation Act'' (``the Land Exchange'') that proposed a mandatory
conveyance of National Forest Service lands to Resolution Copper, a
private mining company owned by the foreign mining giants Rio Tinto PLC
(United Kingdom) and BHP Billiton Ltd (Australia), in order to
facilitate the development of a massive and unprecedented block cave
copper mining project; and
WHEREAS, the lands to be conveyed under the Land Exchange lie within
the Tonto National Forest and are known as Oak Flat, which are part of
the ancestral homelands of the Western Apache, Yavapai, Hopi, Zuni, and
O'odham people; and
WHEREAS, Oak Flat is a place filled with power--a place where Native
people go today for prayer, to conduct ceremonies such as Holy Ground
and the Apache Puberty Rite Ceremony that some refer to as the Sunrise
Dance, which celebrates a young woman's coming of age, to gather
medicines and ceremonial items, and to seek and obtain peace and
personal cleansing; and
WHEREAS, Oak Flat has played an essential role in Apache religion,
traditions, and culture for centuries and is a holy site and
traditional cultural property with deep tribal religious, cultural,
archaeological, historical and environmental significance; and
WHEREAS, on March 4, 2016, Oak Flat was listed on the National Park
Service's National Register of Historic Places as a Traditional
Cultural Property; and
WHEREAS, the Land Exchange circumvents federal laws that mandate
protection of Native religion and culture and circumvents federal laws
that mandate protection the environment; and
WHEREAS, ITAA has passed resolutions opposing the Land Exchange and has
joined hundreds of Native Nations, Native organizations and others in
opposition to the Land Exchange, because the proposal will destroy the
religious and cultural integrity of Oak Flat, and set dangerous
precedent for all of Indian Country by conveying federal lands that
encompass a known Native sacred area to a private company for mining
WHEREAS, over united opposition by ITAA Member Tribes and other Indian
tribes, nations and organizations across the country, the Southeast
Arizona Land Exchange legislation was attached to the FY 2015 National
Defense Authorization Act and enacted in December 2014; and
WHEREAS, under Section 3003, the United States Department of
Agriculture (USDA) must begin implementation of the Land Exchange,
which includes conducting an environmental assessment of the Land
Exchange and conducting government-to-government consultation with
impacted Indian tribes--but which also includes a mandatory transfer of
Oak Flat to the foreign-owned mining corporation regardless of the
results of the environmental assessment and tribal government
WHEREAS, today, the U.S. Forest Service is working to implement the
directives of Section 3003 and just this month announced that it has
completed a draft environmental assessment of the Land Exchange and
mine project, making the Land Exchange imminent; and
WHEREAS, by Resolution 0115 adopted on August 28, 2015, the Inter
Tribal Association of Arizona has previously expressed its Support for
the Repeal of Section 3003 of the FY 2015 National Defense
Authorization Act, the Southeast Arizona Land Exchange; and
WHEREAS, legislation calling for the Repeal of Section 3003 of the FY
2015 National Defense Authorization Act (``To repeal section 3003 of
the Carl Levin and Howard P. ``Buck'' McKeon National Defense
Authorization Act for Fiscal Year 2015'' or the ``Save Oak Flat Act'')
has now been re-introduced in the current 116th Congressional session
as H.R. 665 (sponsored by Representative Grijalva), and S. 173
(sponsored by Senator Sanders).
NOW THEREFORE BE IT RESOLVED, the Member Tribes of the Inter Tribal
Association of Arizona hereby reaffirm our commitment to the protection
of Native sacred and cultural sites located on federal lands; and
BE IT FURTHER RESOLVED, the Member Tribes of the Inter Tribal
Association of Arizona urge Congress to pass the Save Oak Flat Act in
order to repeal Section 3003 of the FY 2015 National Defense
Authorization Act and protect Oak Flat from being exchanged to foreign
mining interests to facilitate a highly destructive copper mine.
The foregoing resolution was presented and duly adopted at a meeting of
the Inter Tribal Association of Arizona , where a quorum was present on
Friday, August 23, 2019.
President, Inter Tribal Association of Arizona
Vice-Chairman, Fort Mojave Indian Tribe
THE NATIONAL CONGRESS OF AMERICAN INDIANS
TITLE: Support for the Protection of Oak Flat and Other Native American
Sacred Spaces from Harm.
WHEREAS, we, the members of the National Congress of American Indians
of the United States, invoking the divine blessing of the Creator upon
our efforts and purposes, in order to preserve for ourselves and our
descendants the inherent sovereign rights of our Indian nations, rights
secured under Indian treaties and agreements with the United States,
and all other rights and benefits to which we are entitled under the
laws and Constitution of the United States and the United Nations
Declaration on the Rights of Indigenous Peoples, to enlighten the
public toward a better understanding of the Indian people, to preserve
Indian cultural values, and otherwise promote the health, safety and
welfare of the Indian people, do hereby establish and submit the
following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAS, through treaties with the United States, federal laws
mandating the allotment of Indian lands, and other U.S. takings, tribal
nations lost hundreds of millions of acres of tribal homelands to help
build this Nation; and
WHEREAS, federal lands are carved out of the ancestral lands of tribal
nations and the historical and spiritual connections of Native
Americans to these lands have not been extinguished; and
WHEREAS, some of these lands contain the remains of our ancestors and
Native Americans continue to pray, hold ceremonies, and gather
traditional and medicinal plants on these lands; and
WHEREAS, the United States government has legal and moral obligations
to provide access to these ancestral lands to Native Americans and to
protect these traditional cultural territories in a manner that
respects the cultural, historical, spiritual and religious importance
of these lands to tribal nations; and
WHEREAS, for more than ten years, Congress considered and rejected
legislation titled the ``Southeast Arizona Land Exchange and
Conservation Act'' (``the Land Exchange'') that proposed a mandatory
conveyance of National Forest Service lands to Resolution Copper, a
private mining company owned by the foreign mining giants Rio Tinto PLC
(United Kingdom) and BHP Billiton Ltd (Australia), in order to
facilitate the development of a massive and unprecedented block cave
copper mining project; and
WHEREAS, pursuant to Sec. 3003 of the National Defense Authorization
Act of 2015 (NDAA), Congress authorized the transfer of all right,
title, and interest of the United States in approximately 2,242 acres
federal lands in the Tonto National Forest, commonly known as Oak Flat,
in exchange for all right, title, and interest in specifically
identified non-federal lands held by Resolution Copper; and
WHEREAS, Oak Flat is part of the ancestral homelands of the Western
Apache, Yavapai, Hopi, Zuni, and O'odham people; and
WHEREAS, Oak Flat is a place filled with power--a place where Native
people have, since time immemorial, and continue to go to for prayer,
to conduct ceremonies such as Holy Ground and the Apache Puberty Rite
Ceremony that some refer to as the Sunrise Dance, which celebrates a
young woman's coming of age, to gather medicines and ceremonial items,
and to seek and obtain peace and personal cleansing; and
WHEREAS, Oak Flat has and continues to play an essential role in Apache
religion, traditions, and culture for centuries and is a holy site and
traditional cultural property with deep tribal religious, cultural,
archaeological, historical and environmental significance; and
WHEREAS, on March 4, 2016, Oak Flat was listed on the National Park
Service's National Register of Historic Places as a Traditional
Cultural Property; and
WHEREAS, the Land Exchange circumvents federal laws that mandate
protection of Native American religion and culture and circumvents
federal laws that mandate protection of the environment; and
WHEREAS, the Inter Tribal Association of Arizona (``ITAA''), an
association of 21 tribal governments in Arizona, provides a forum for
tribal governments to advocate for national, regional and specific
tribal concerns and to join in united action to address these issues;
WHEREAS, the ITAA has passed resolutions opposing the Land Exchange and
has joined hundreds of tribal nations, Native organizations and others
in opposition to the Land Exchange, because the proposal will destroy
the religious and cultural integrity of Oak Flat, and set dangerous
precedent for all of Indian Country by conveying federal lands that
encompass a known Native sacred area to a private company for mining
WHEREAS, by standing resolution #REN-13-019, NCAI has opposed the Land
Exchange (H.R. 1904 and H.R. 687, and S. 339), the Southeast Land
Exchange, and has joined hundreds of tribal nations, tribal
organizations and others in opposition to the Land Exchange; and
WHEREAS, over united opposition by NCAI, ITAA member tribes, and other
tribal nations, and organizations across the country, the Southeast
Arizona Land Exchange legislation was attached to the FY 2015 National
Defense Authorization Act and enacted in December 2014; and
WHEREAS, under Section 3003, the United States Department of
Agriculture (USDA) must begin implementation of the Land Exchange,
which includes conducting an Environmental Impact Statement of the Land
Exchange and conducting government-to-government consultation with
impacted Indian tribes--but which also includes a mandatory transfer of
Oak Flat to the foreign-owned mining corporation regardless of the
findings of the Environmental Impact Statement and tribal government
WHEREAS, the U.S. Forest Service, in carrying out the directives of
Section 3003 published the Draft Environmental Impact Statement of the
Land Exchange and mine project; and
WHEREAS, by standing resolution #MSP-15-001, the NCAI expressed its
support for the Repeal of Section 3003 of the FY 2015 National Defense
Authorization Act, the Southeast Arizona Land Exchange; and
WHEREAS, legislation calling for the Repeal of Section 3003 of the FY
2015 National Defense Authorization Act has now been re-introduced in
the current 116th Congressional session as H.R. 665 (sponsored by
Representative Grijalva), and S. 173 (sponsored by Senator Sanders).
NOW THEREFORE BE IT RESOLVED, that the National Congress of American
Indians (NCAI) reaffirms its commitment to strongly advocate for the
protection of Native American sacred places in accordance with its 2002
Policy Statement, NCAI standing resolution #PHX-08-069c, ``NCAI Policy
Statement on Sacred Places,'' NCAI standing resolution #SD-02-002,
``Essential Elements of Public Policy to Protect Native Sacred
Spaces,'' and other resolutions that oppose mining that harms sacred
BE IT FURTHER RESOLVED, that NCAI will support national and
international administrative and legislative actions that meet the
standards set forth in, but not limited to, the above mentioned NCAI
resolutions and protect sacred places from destruction and harm; and
BE IT FURTHER RESOLVED, that NCAI supports legislative efforts to
repeal Section 3003 of the FY 2015 National Defense Authorization Act
because it affirms the trust responsibility of the United States to
protect Native American sacred places; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution
The foregoing resolution was adopted by the General Assembly at the
2019 Annual Session of the National Congress of American Indians, held
at the Albuquerque Convention Center, October 20-25, 2019, with a
Fawn Sharp, President
Juana Majel Dixon, Recording Secretary
National Association of Tribal Historic
March 10, 2020
Hon. Raul Grijalva, Chair,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.
Hon. Ruben Gallego, Chair,
Subcommittee for Indigenous Peoples of the United States,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: U.S. Forest Service (USFS) Resolution Copper EIS and H.R. 665/S.
173, Save Oak Flat Act
Dear Congressmen Grijalva and Gallego:
Thank you for your actions regarding the irreparable environmental
and cultural impacts of the proposed Resolution Copper mining operation
at Tonto National Forest. The National Association of Tribal Historic
Preservation Officers (NATHPO) is a nonprofit organization whose
members are the Tribal government officials (THPOs) implementing the
National Historic Preservation Act (NHPA) as delegates of the Secretary
of the Interior on tribal land. NATHPO serves THPOs by providing
training, coordination, advocacy, and elevation of their collective
voices. As the entity representing a key constituency who will be
substantially impacted by the proposed actions, we have grave
objections and concerns, and we support the Save Oak Flat Act, H.R.
The U.S. Forest Service (USFS) closed the public comment period on
the Draft Environmental Impact Statement (DEIS) on November 7, 2019,
and is rushing to finalize the EIS on the Resolution Copper mine by
summer 2020. Under legislation passed in Dec. 2014 (SE AZ Land
Exchange), once the EIS is finalized, then USFS must transfer the
National Register of Historic Places-listed Chi'chil Bildagoteel
Historic District Traditional Cultural Property (TCP) known as Oak Flat
to Resolution Copper within 60 days where it will then become private
land owned by this foreign mining company and will not be subject to
Resolution Copper plans to develop its copper mine at Oak Flat,
which will destroy this Traditional Cultural Property. The DEIS
confirms what tribes, historic preservation advocates, and concerned
citizens have repeatedly warned for over 15 years--Resolution Copper's
mine, despite years of denials, will directly, adversely, and
permanently affect numerous cultural resources, sacred springs,
traditional areas, burial locations, and other places and experiences
of high spiritual and cultural value.
The DEIS states that Resolution Copper plans to detonate and
extract 1.4 billion tons of rock from 7,000 feet below Chi'chil
Bildagoteel Historic District TCP, creating a massive crater that TNF
estimates will be over 1,000 feet deep and 1.8 miles across. Prior to
the release of this DEIS, Resolution Copper denied over the decades
there would be a crater at all--much less one this big and deep.
The proposed actions of various federal agencies to expedite
massive mining operations proposed by Resolution Copper LLC, jointly
owned by international mining giants Rio Tinto and BHP, will
irreversibly damage hundreds of thousands of acres of public lands,
which are the ancestral homelands of tribes in the region, and
surrounding areas. This mine would likely be the largest and deepest
mine in North America.
Moreover, the DEIS reveals that, due to dewatering activities of
Resolution Copper since 2009, the expansive water table under Chi'chil
Bildagoteel Historic District has already decreased more than 2,000
feet, which is shocking, especially in the Arizona desert during a
drought. Resolution Copper also proposes developing miles of pipelines,
powerlines, roads, electrical substations, and other facilities in the
region on additional public lands.
According to the DEIS, Resolution Copper will blast the massive ore
body from underneath Chi'chil Bildagoteel Historic District, with the
rock falling into a system of underground tunnels and shafts. Once in
the tunnels, the mined ore will be transported by a conveyor system
through a new tunnel that Resolution Copper proposes to construct under
Apache Leap, which could jeopardize this prized escarpment, to
Resolution Copper's West Plant site in Superior for chemical
processing. Then, the copper concentrate will be pumped as slurry
through a 22-mile pipeline to a filter plant and loadout facility near
Florence Junction, Arizona, for transport to China and other countries.
The DEIS states that Resolution Copper's mining activities will
generate 1.37 billion tons of contaminated rock waste (tailings) and
that Resolution Copper seeks to pump this waste as slurry through
pipelines to dump on approximately 5,000 acres of possibly public land
near populated areas.
The wholesale and wanton destruction of this sacred place would be
an atrocity and yet another indelible stain on our nation's history
regarding the treatment of its original peoples. We are grateful for
your actions to oppose it and hold responsible federal agencies and
Valerie J. Grussing, PhD,
Statement for the Record
Chairman, San Carlos Apache Tribe
My name is Terry Rambler. I am the Chairman of the San Carlos
Apache Tribe (``Tribe''), representing 16,900 tribal members. The U.S.
entered into the ratified Apache Treaty of Santa Fe in 1852 to end
hostilities. Today, the San Carlos Apache Reservation (``Reservation'')
is located in rural southeast Arizona and spans 1.8 million acres.
Thank you for the opportunity to provide written testimony regarding
the ``The Irreparable Environmental and Cultural Impacts of the
Proposed Resolution Copper Mining Operation.''
Over the Tribe's strenuous objections and despite the bill being
unable to pass either the House or Senate, the Southeast Arizona Land
Exchange Act (``Land Exchange'') was passed as a last minute rider
(Section 3003) to the FY 2015 National Defense Authorization Act
(``NDAA'') in December 2014. Section 3003 requires the Secretary of
Agriculture to transfer 2,422 acres of Tonto National Forest (``TNF'')
land known as Oak Flat to Resolution Copper, a joint venture of Rio
Tinto (United Kingdom/Australia) and BHP Billiton, Ltd. (Australia), no
later than 60 days after the publication of a final environmental
impact statement (``FEIS''), regardless of the findings of the
environmental analysis, so that they can build the largest and deepest
underground copper mine in North America.
Through this legislation, these two foreign mining companies have
rigged the environmental review process to provide cover for a massive
federal giveaway of natural resources that will result in the
destruction of the Chi'chil Bildagoteel (Oak Flat) Historic District, a
traditional cultural property (``TCP'') listed on the National Register
of Historic Places and other cultural resources of the San Carlos
Apache Tribe and other tribes and will have severe impacts on the water
resources of the entire region. The Resolution Copper Mine (``RCM'')
project will leave a crater 1.8 miles in diameter and between 800 and
1,115 feet deep.\1\ If Oak Flat is transferred and the RCM project is
approved, my people will no longer be able to come together there for
ceremonies, or to pray, or to gather our medicinal plants and
traditional foods, such as the Emory oak acorns that are plentiful
\1\ Draft Environmental Impact Statement (``DEIS'') for Resolution
Copper Project and Land Exchange, p. ES-22.
The federal government has a treaty and trust responsibility to
protect TCP's and tribal cultural resources located on federal land
from being transferred to private interests that will cause the
destruction of the TCP and other cultural resources. We call on
Congress to not allow the transfer of Chi'chil Bildagoteel from Tonto
National Forest to Resolution Copper.
Oak Flat is not only a sacred area for the San Carlos Apache Tribe,
but as noted by the ethnographic study prepared for TNF, 9 other tribes
have traditional ties to the area.\2\ Each of these tribes have
cultural resources on and maintain strong cultural ties to this land.
The ethnographic study identified 404 cultural resources in the
Superior area demonstrating the connections of these tribes.
\2\ Ethnographic and Ethnohistoric Study of the Superior Area,
Arizona, Hopkins, Colwell, Ferguson, and Hedquist, p. iii.
On August 1, 2019, the TNF released a Draft Environmental Impact
Statement (``DEIS''), which although it is the product of a rigged
process and had numerous deficiencies still confirmed the damage to Oak
Flat and other cultural resources as well as the significant
environmental impact on the water resources of the entire region.
Already, due to Resolution Copper's mine dewatering activities on their
private land near Oak Flat, the groundwater levels under Oak Flat have
fallen 2,000 feet since 2009.\3\ Numerous sacred springs and
groundwater dependent ecosystems (``GDE'') will either dry up or slow
to a trickle. Massive groundwater pumping, estimated at 550,000 acre
feet, to support mine activities will result in drawdowns for well
users throughout the Desert Wellfield. Not only does the RCM project
include the mine, but it also includes a massive amount of supporting
infrastructure, such as a tailings facility, two processing plants, a
huge tunnel under Apache Leap, wells, pumping stations, pipelines to
slurry copper and tailings, powerlines, and access roads. In total,
TNF's preferred alternative encompasses approximately 15,872 acres of
land.\4\ According to the DEIS, all of this infrastructure will also
have serious impacts on cultural resources and water resources.
Unfortunately, despite these findings, TNF is still required to move
forward with the land transfer within 60 days after they issue a Final
\3\ DEIS, p. 320.
\4\ DEIS, p. 94.
Even though it confirmed many of the impacts that the Tribe has
warned about for years, the DEIS also has significant deficiencies
which often result in understating impacts or in not reporting
additional impacts. In some cases, the DEIS makes assumptions about
baseline models that skew the results, and in other cases, the models
themselves are not accurate enough to be used to fully understand all
of the impacts. Often, the DEIS simply lacks a thorough analysis of the
impacts to cultural resources and the environment. In sum, these
deficiencies prevent a full understanding of the environmental impacts
of the RCM project.
Finally, Section 3003, the National Environmental Protection Act
(``NEPA''), the National Historic Preservation Act (``NHPA''), and
Executive Order 13175 all require meaningful government-to-government
consultation, but throughout this process TNF has not engaged in
meaningful consultation with the Tribe. In fact, TNF has not conducted
proper consultation with the Tribe regarding its' preferred alternative
for siting the tailings storage facility at Skunk Camp, which the DEIS
reports will impact 323 cultural resources.
We ask your help in preventing Oak Flat from being transferred to
Resolution Copper, and we ask your help in requesting that TNF withdraw
the DEIS in order to conduct appropriate tribal consultation and a real
environmental analysis for the region. Once the RCM project starts,
there is no mitigation that can replace Oak Flat for my people.
Oak Flat is a Sacred Area Listed on the National Register of Historic
For hundreds of years, the Oak Flat area, known in Western Apache
as Chi'chil Bildagoteel meaning ``a broad flat of Emory oak trees'',
has been a place of cultural and religious significance to Western
Apaches, including the San Carlos Apache Tribe, and other tribes.
Recognizing its historical and modern importance to Western Apaches,
the National Park Service (``NPS'') listed the Chi'chil Bildagoteel
Historic District on the National Register of Historic Places as a TCP
Oak Flat is located in the Tonto National Forest and is part of the
aboriginal territory of the San Carlos Apache Tribe and other Western
Apaches. The Tonto National Forest is named after the Tonto Band of
Apaches who lived in the area along with other Apache bands. In the
1870s, the U.S. Army forcibly removed Apaches from our aboriginal
lands, including the Oak Flat area, to the San Carlos Apache
Reservation. We were made prisoners of war there until the early
1900's. In fact, U.S. military forces were stationed on the Reservation
until 1900, almost 30 years after the conclusion of the Western Apache
wars and at Ft. Apache until 1920. Even though we were removed at
gunpoint by the United States from the Oak Flat region, we still have a
unique and sacred connection to this land.
At least eight Apache Clans and two Western Apache Bands have
documented history in the area. Apaches on the Reservation have
ancestors who came from the Oak Flat area before being forced to Old
San Carlos. Tribal members' ancestors passed their knowledge to their
descendants who are alive today. Our people have lived, prayed, and
died in the Oak Flat area for centuries before this mining project was
Today, the San Carlos Apache Reservation borders the Tonto National
Forest to the east, and the Oak Flat area is located just 15 miles from
our Reservation. As documented in the nomination of Chi'chil
Bildagoteel to the National Register, the Oak Flat area continues to
play a vital role in Apache religion, tradition, and culture. The Oak
Flat area is a place filled with power--a place where Apaches go to
pray, to conduct ceremonies such as Holy Ground and the Sunrise Dance
that celebrates a young woman's coming of age, to gather medicines and
ceremonial items, and to seek and obtain peace and personal cleansing.
Oak Flat is the goiii' (home) of our diyi'n (sacred power), visited by
our ga'an (spiritual beings) who provide us with healing and spiritual
services. Oak Flat is the foundation of our religious beliefs.
For years, the Tonto National Forest administration was aware that
there are important cultural sites to the San Carlos Apache Tribe and
other tribes in the Oak Flat area and that San Carlos Apache tribal
members went to Oak Flat to conduct ceremonies and gather traditional
plants and foods. In January 2012, the TNF began the formal
consultation process with tribes regarding the nomination of Chi'chil
Bildagoteel to the National Register of Historic Places. This
exhaustive process included archival research, interviews with Apache
elders, and fieldwork to identify cultural sites. By July 2014, the TNF
sent a draft nomination to the Arizona State Historical Preservation
Office for comment and followed up with others seeking comment. In
December 2015, TNF formally submitted the nomination to the National
Park Service. After over four years spent documenting the cultural
importance of Oak Flat and going through the proper federal agency
process, on March 4, 2016, the National Park Service listed Chi'chil
Bildagoteel on the National Register of Historic Places as a
traditional cultural property.
If the RCM project is allowed to move forward, it will destroy
Chi'chil Bildagoteel and diminish the power of the place. There are no
human actions or steps that could make this place whole again or
restore it once lost. If Oak Flat is destroyed then with it will be
destroyed unique, centrally important, and irreplaceable aspects of
Southeast Arizona Land Exchange Passed Congress as a Last Minute Rider
to the NDAA
Starting in 2005, Resolution Copper sought passage of legislation
called the Southeast Arizona Land Exchange Act that would transfer Oak
Flat from the Tonto National Forest to their control in order to
develop one of the largest copper mines in North America. The Tribe
consistently opposed these efforts because it would result in the
destruction of a sacred area, a place where ceremonies were conducted
and medicinal plants and traditional foods were gathered, and it would
have significant impacts on the water resources of the region. The
Tribe argued that at a minimum the RCM project should have to go
through the full NEPA process to appropriately evaluate the
environmental impacts and impacts to cultural resources before the land
was transferred. Over the years, the legislation had been opposed by a
wide range of tribes, tribal organizations, religious groups, local
citizen groups, recreational groups, and environmental groups
In the 113th Congress, after the House bill mandating the land
exchange had to be pulled from the floor twice because a majority
opposed the bill and the Senate never even considered the bill, the
Southeast Arizona Land Exchange was forced into a public lands package
over the strong objections of the Tribe and others opposed to the bill
that was then attached to the FY 2015 NDAA as Section 3003 in the
waning days of the 113th Congress in December 2014. Although Rep. Tom
Cole and Rep. Betty McCollum championed an amendment to strike this
provision from the NDAA, no amendments were allowed to the NDAA and no
further debate or consideration could be made. The Southeast Arizona
Land Exchange passed as a last minute rider to the NDAA, but to be
clear, this was not legislation that was supported by a majority in
Congress. Since the passage of the land exchange, Chairman Grijalva has
introduced legislation (H.R. 665 in this Congress) that would repeal
Section 3003, for which we are very grateful.
Section 3003 of the FY 2015 NDAA will transfer 2,422 acres of the
Tonto National Forest land known as the Oak Flat Parcel pending the
issuance of a FEIS. According to the legislation, regardless of what
the environmental or cultural resource impacts are to Oak Flat, TNF
must convey the Oak Flat Federal Parcel to Resolution Copper no later
than 60 days after completion of the FEIS. Further, the legislation
states that a single environmental impact statement will be used to not
only consider the land transfer but also the Mine Plan of Operations
(or General Plan of Operations--``GPO''). The legislation also
stipulates that the EIS shall assess the cultural and archeological
resources located on the land to be transferred and identify measures
to minimize potential adverse impacts, but makes no special
requirements to protect those cultural resources. Thus, Section 3003
circumvents the federal laws that were designed to protect tribal
sacred areas, such as the National Historic Preservation Act, and
creates a nonsensical process whereby an environmental analysis is
conducted but has no relevance on actually exchanging the land.
The DEIS for Oak Flat is a Rigged Process
Under NEPA, Congress required that the environmental impact
statement process provide a balanced and fair report to the American
people of the benefits and harms of any major federal actions. NEPA
came into being because there were countless environmental disasters
and Americans were being harmed by industry. But, the Oak Flat EIS
process is not designed to produce a fair report.
TNF has always viewed the Land Exchange as a ``done deal,'' and
this shows in the DEIS. After all, this is the process that the Land
Exchange Act provides, a process specially crafted to provide an
exemption to foreign mining companies so that they do not have to go
through the same process every other mine in America must follow.
Once Oak Flat is in RCM hands, a myriad of problems disappear for
both TNF and RCM. RCM's mining method is no longer a problem because
the land above the ore body is now private, not federal, property. A
huge polluted pit lake is no longer a problem because the land where
the lake sits is in private hands. And, those problems which can be
corrected after the Land Exchange will be done with tribes and the
public completely shut out of the process, because Oak Flat will
already be in RCM's hands.
TNF's DEIS is a rush to judgment so that no matter the
environmental devastation that will occur, Oak Flat becomes private
property. In rushing the DEIS, TNF is able to facilitate the early Land
Exchange knowing that it can still make corrections to the faulty DEIS
before a final Record of Decision is issued by the Regional Forester.
Make no mistake about it, if this DEIS were to go to federal court
as it stands now, it would be rejected. The investigation is grossly
incomplete, and the analyses are flawed. The groundwater impact models
provide the outcome RCM wants us to see, not what will happen. The DEIS
fails to perform basic seismic analysis, which will only serve to risk
lives and property.
TNF's view that the Land Exchange is a foregone conclusion is even
causing it to alter the normal process for the examination of a DEIS.
Normally, an initial DEIS will be followed by a Supplemental DEIS
before a Final EIS is issued. This process is then followed by public
comment and a review by the Regional Forester before the Record of
Decision is issued. That exhausts the administrative procedure. By
contrast, the DEIS process for RCM does not even afford tribes the
benefit of a Supplemental DEIS for public review and comment. Here,
once the Final EIS is issued, the tribes' only recourse is to expose
this process in the courthouse.
We ask Congress to honor its trust responsibility and to stop Oak
Flat from being transferred to Resolution Copper. We ask Congress to
help us request that TNF withdraw the DEIS to conduct appropriate
tribal consultation and a fair EIS process.
DEIS Confirms the Destruction of Oak Flat and Substantial Environmental
Even with the EIS process being rigged, the DEIS still confirms
many of the things that the Tribe has been arguing for years about
including the destruction of Oak Flat and severe impacts to water
resources throughout the region. It is no mistake that Resolution
Copper designed a land exchange process in the Southeast Arizona Land
Exchange Act that requires a mandatory transfer of the land no matter
what the EIS finds because the level of destruction and environmental
damage that will result from this project would disqualify it from ever
happening if the regular NEPA process was followed.
The impacts of the project cannot be overstated: (1) Chi'chil
Bildagoteel (``Oak Flat''), a TCP listed on the National Register of
Historic Places, and numerous other cultural resources will be
destroyed; (2) the water resources of the area will be depleted; and
(3) the project will require significant infrastructure covering 15,872
acres such as tunneling under Apache Leap, a massive tailings storage
facility, and pipelines to slurry ore and waste across federal land.
The Destruction of Chi'chil Bildagoteel (``Oak Flat'')
Over the years, Resolution Copper and supporters of the mine have
suggested that there would be ``limited surface impact'' \5\ to the Oak
Flat area. Instead, the DEIS states that the RCM project will result in
a ``subsidence crater at the Oak Flat Federal Parcel'' that ``would be
between 800 and 1,115 feet deep, and would be about 1.8 miles in
diameter.'' \6\ This will destroy Chi'chil Bildagoteel with no chance
of ever restoring the damage.
\5\ Senate Energy & Natural Resources Hearing, 110-572, p.42,
Verbal Testimony of Resolution Copper President David Salisbury.
\6\ DEIS, p. ES-22.
Resolution Copper's proposed GPO states that they will employ a
block cave mining technique to remove the copper ore from 7,000 feet
underground. This technique consists of drilling tunnels under the rock
to be excavated; blasting the rock from underneath; letting it collapse
into funnels; and then removing the rock through the tunnels and a
conveyor system built under Apache Leap. As Resolution Copper blasts
the rock from underneath, the surface will subside into the void
created by extracting the rock underground. Ultimately, the block cave
mining underneath Oak Flat will cause the surface to subside and create
an enormous crater. As stated in the DEIS, ``The NRHP-listed Chi'chil
Bildagoteel Historic District TCP would be directly and permanently
damaged by the subsidence area at the Oak Flat Federal Parcel.'' \7\
Again, Chi'chil Bildagoteel is a unified cultural and religious
landscape for the Apache people that will be permanently destroyed and
cannot be replaced. Further, because of the subsidence and the
resulting public safety concerns, the entire area will be fenced off
and inaccessible to the public. Thus, our people will no longer be able
to conduct our ceremonies there nor will they be able to collect our
medicinal plants and traditional foods there. As stated in the DEIS:
\7\ DEIS, p. ES-26.
. . . the Chi'chil Bildagoteel Historic District, which
comprises the Oak Flat and Apache Leap areas, is a Forest
Service-recognized TCP. This project is located in an area that
is important to many tribes and has been for many generations
and continues to be used for cultural and spiritual purposes.
No tribe supports the desecration/destruction of ancestral
sites. Places where ancestors have lived are considered alive
and sacred. It is a tribal cultural imperative that these
places should not be disturbed or destroyed for resource
extraction or for financial gain. Continued access to the land
and all its resources is necessary and should be accommodated
for present and future generations. Development of the
Resolution Copper Mine would permanently alter lands that hold
historical, cultural, and spiritual significance for many
\8\ DEIS, p. 668.
Not only is Chi'chil Bildagoteel impacted by the project, but the
extensive infrastructure including processing plant sites, a massive
tailings storage facility, pipelines to slurry material, and a tunnel
under Apache Leap will also impact hundreds of other cultural
resources. The DEIS reports that the preferred alternative for the
tailings storage facility, Skunk Camp-North Option, will alone result
in adverse impacts to 323 cultural resources.\9\ In addition to these
known cultural resources, the DEIS anticipates that there will be
burial sites impacted by the proposed mine, however the actual number
and locations of these burial sites will not be known until they are
disturbed by the activities of the mining company.
\9\ DEIS, p. 365.
``Linear facilities, including new pipelines, power lines, and
roads, as well as other facilities such as electrical
substations, would also be constructed in support of mine
operations. In addition, development of the proposed tailings
storage facility at any of the four proposed alternative
locations would permanently bury or otherwise destroy many
prehistoric and historic cultural artifacts, potentially
including human burials.'' \10\
\10\ DEIS, p. 25.
Further, the DEIS notes that, ``[s]acred springs would be
eradicated by subsidence or tailings storage construction and affected
by groundwater water drawdown.'' \11\ In particular, 14-16 groundwater
dependent ecosystems (``GDE'') would be impacted, with 10 to 13 sacred
springs being lost due to mine dewatering activities and depending on
the siting of the tailings facility.\12\
\11\ DEIS, p. 713.
\12\ DEIS, Appendix E, E-3.
Finally, the DEIS Executive Summary asserts that there will be no
damage to Apache Leap, but under current projections, the fracture zone
is a mere 340 meters away from Apache Leap. Further, in its analysis
the DEIS states that there will actually likely be 1.5 feet of vertical
and horizontal displacement which ``could potentially cause angular
distortion to locally exceed the damage threshold at Apache Leap and
lead to localized rock block failure.'' \13\ Also, the modeling
workgroup acknowledged that there are uncertainties regarding rock
composition and fault strength that could also affect the possibility
of damage. So, instead of there being no damage, the reality is that
there will likely be at least localized damage to Apache Leap as a
result of mining activities. While Resolution Copper insists that it is
constantly monitoring and would be able to stop mining if there were
larger effects on Apache Leap, in the end, there is no real recourse if
Resolution Copper and the Forest Service have miscalculated and Apache
Leap is widely damaged. In fact, Section 3003(g)(6) expressly prevents
any restrictions on mining activities as part of the Apache Leap
Special Management Area:
\13\ DEIS, p. 154.
(6) MINING ACTIVITIES.--The provisions of this subsection shall
not impose additional restrictions on mining activities carried
out by Resolution Copper adjacent to, or outside of, the Apache
Leap area . . .\14\
\14\ Sec. 3003(g)(6) of the FY 2015 National Defense Authorization
Currently, Chi'chil Bildagoteel and our other cultural sites and
resources are protected under the NHPA and other laws. However, once
Oak Flat is transferred to Resolution Copper, there are no more federal
protections for our ancestors buried there, for our cultural resources
located there, for our traditional plant and food gathering sites, or
for our ceremonial areas at Chi'chil Bildagoteel. Once these are
destroyed there is no mitigation that can replace what has been lost.
As stated in the DEIS:
Given the known presence of ancestral villages, human remains,
sacred sites, and traditional resource-collecting areas that
have the potential to be permanently affected, it is unlikely
that compliance and/or mitigation would substantially relieve
the disproportionality of the impacts on the consulting
\15\ DEIS, p. 683.
The Water Resources of the Region Will Be Severely Impacted
Prior to passage of the land exchange, Resolution Copper and other
supporters of the mine insisted that there would be no impact on water
supplies or water quality. As an example, in 2011, Resolution Copper
President John Cherry testified, ``Resolution Copper has already spent
more than $33 million to date studying the hydrogeology in and around
the mine project, and has drilled more than 30 holes in the area to
assess the water resources. These activities so far show little if any
impact to local water quantity or quality from the new operations . .
.'' \16\ Although it underestimates the impacts on water resources, the
DEIS confirms that this could not be any further from the truth. In
fact, there will be substantial impacts to water quantity and quality
for the entire region.
\16\ House Committee on Natural Resources Hearing, 112-40, p. 47.
Since 2009, Resolution Copper has engaged in mine dewatering
activities on their land near Oak Flat that has caused groundwater
levels below Oak Flat to drop over 2,000 feet, and near Superior, water
levels to decline roughly 20 to 90 feet.\17\ This is even before the
land exchange and actual mining project begins.
\17\ DEIS, p. 312.
The DEIS expects Resolution Copper to pump 87,000 acre feet
specifically to dewater the mine over the life of the project, although
how the Forest Service and Resolution Copper came to this number is
unclear. In addition, the preferred alternative for the tailings site,
Skunk Camp-North Option, will require pumping 550,000 acre feet from
the Desert Wellfield in the East Salt River Valley. As noted
previously, as a result of these actions between 14 and 16 GDEs are
anticipated to be impacted with many completely drying up, and
depending on the siting of the tailings facility, 10-13 sacred springs
will be ``lost''. This will be devastating to riparian habitats
supported by these GDEs and the wildlife that depends on those
habitats. Further, ``[d]rawdown from 10 to 30 feet is anticipated in
wells in the Superior area,'' \18\ and wells in Top-of-the-World are
also expected to be impacted. Pumping from the Desert Wellfield ``would
incrementally contribute to the lowering of groundwater levels and
cumulatively reduce overall groundwater availability in the area.''
\19\ Specifically, the DEIS estimates that the water levels in the
Desert Wellfield area could be drawn down 199 feet.\20\ In total,
according to the DEIS, the pumping of 550,000 acre feet of water would
represent more than 6.7% of all water in the Desert Wellfield.\21\
\18\ DEIS, p. 325.
\19\ DEIS, p. ES-24.
\20\ DEIS, p. 339.
\21\ DEIS, p. 340.
Although Resolution Copper and other supporters of the mine have
often argued that Resolution Copper was banking water and either had or
would secure enough water for the life of the project, the DEIS
confirms that in fact, Resolution Copper has only secured 43-52% of the
needed water for the project and it concludes, ``[c]umulatively, the
total demand on the groundwater resources in the East Salt River valley
is substantial and could be greater than the estimated amount of
physically available groundwater.'' \22\
\22\ DEIS, p. 342.
In addition to significant water quantity impacts as a result of
this project, the DEIS confirms that there are water quality concerns
as well. The DEIS notes that after the mine has been closed the cave
zone would reflood and would likely have poor water quality. It is also
likely that storm water runoff from tailings facilities would have poor
water quality. In addition, all of the tailings storage facilities
would have seepage from the facility with poor water quality, and
specifically the DEIS concludes that Resolution Copper's proposed
tailings storage facility site would result in water quality problems
in Queen Creek.\23\
\23\ DEIS, p. ES-24.
The DEIS Reveals Massive Amount of Infrastructure to be Built Across
When the Southeast Arizona Land exchange was being considered in
Congress, what was often not discussed or evaluated was the enormous
scope of the project and the need for extensive infrastructure in
addition to the mining area. When testifying before Congress in 2009,
Resolution Copper President David Salisbury stated that Resolution
Copper would ``deposit the tailings to fill one or more existing open
pits from closed mines, and then reclaim and re-vegetate those
backfilled pits. We believe that undertaking will significantly benefit
the environment.'' \24\ While this certainly sounded environmentally
responsible, in reality Resolution Copper's GPO considered by the DEIS
proposes nothing of the sort. Rather, the GPO proposes the largest and
deepest underground copper mine in North America with a number of
processing and tailings storage facilities, a huge tunnel under Apache
Leap with conveyors, and pipelines to move the copper ore and tailings
\24\ Senate Energy & Natural Resources Hearing 110-572, p. 45.
Specifically, a support facility known as East Plant Facility
located in the Oak Flat Area will be expanded to support a huge
underground tunnel to be built under the ore body to enable the ore to
be blasted, fall down, and then partially crushed. Another tunnel will
be built under Apache Leap for a huge conveyor to transport the
partially crushed rock 2.5 miles to the West Plant Facility where the
ore will be processed into copper and molybdenum concentrate. Then, the
copper concentrate will be pumped as a slurry through a 22-mile
pipeline along the Magma Arizona Railroad Company (``MARRCO'') corridor
to a filter plant and facility in Florence Junction to load the copper
onto rail cars or trucks. The MARRCO Corridor will also have water
pipelines, power lines, pump stations, and groundwater wells to support
the mining project. Under Resolution Copper's proposal, the ultimately
1.37 billion tons of tailings that need to be stored in perpetuity
would be pumped as a slurry through different pipelines 4.7 miles to a
3,300 acre tailings storage facility with 4,900 acres fenced off from
public access called Near West located on Tonto National Forest land
just east of Queen Valley. However, rather than the Near West site, the
preferred alternative in the DEIS, Skunk Camp-North, located on State
land, would have the tailings slurried through pipelines for 20 miles
partially through the Tonto National Forest to a 4,000 acre tailings
facility with 8,600 acres fenced off from public access. In some areas,
these pipelines will be buried, and in some areas, there will be spans
across canyons. Access roads along the pipeline will also have to be
built to facilitate construction and maintenance. Powerlines may also
be running along these pipeline corridors. In total, under the
preferred alternative, the mine project infrastructure will cover
approximately 15,872 acres or nearly 25 square miles of land.
The project involves at a minimum the Forest Service allowing miles
of power lines, tailings slurry pipelines, and access roads to the
pipelines to be built across the Tonto National Forest and potentially
even siting a tailings storage facility using 4,900 acres of the Tonto
National Forest. In fact, much of the DEIS is actually a consideration
of a variety of alternatives for siting the tailings storage facility
because there are significant environmental and public safety concerns
with storing such a vast quantity of tailings. When it was passed, the
Southeast Arizona Land Exchange did not contemplate this considerable
level of additional infrastructure and its significant impact on Tonto
National Forest and the broader region.
The siting of a tailings storage facility on TNF land or even
pipelines and access roads across TNF land has significant implications
for the San Carlos Apache Tribe. The DEIS notes that the preferred
alternative of Skunk Camp-North will impact 323 cultural resources. It
is unclear how accurate or exactly what these cultural resources are
because SCAT has not been fully consulted by TNF to fully understand
what cultural resources may be impacted by these various alternatives.
Not only will the destruction of Chi'chil Bildagoteel have a
terrible negative impact, but this massive additional infrastructure
will also have huge impacts for the Tribe and for other communities in
the region. Much more time and analysis should be taken to fully
understand the implications of these alternative sites for the tailings
storage facility and the pipelines before making a final decision.
The Draft EIS Fails to Account for Significant Damage to Cultural and
Although the DEIS lays out in a number of ways the significant
impacts that the Resolution Copper mine will have on the Tribe's
cultural resources and the regions' water resources, it also fails in a
number of important ways. Before moving any further, TNF should
withdraw the DEIS and conduct proper tribal consultation; take
appropriate steps to fully consider the Tribe's cultural resources;
undertake a thorough water resources analysis; and undertake a full and
fair analysis of all alternatives.
Lack of Adequate Consultation
Under Section 3003(c)(3) of the FY 2015 NDAA, the Forest Service is
expressly required to consult with affected Indian tribes regarding
``issues of concern'' with the land exchange. Further, NEPA and the
NHPA require the Forest Service to engage in consultation with affected
Indian tribes. However, the Forest Service has thoroughly failed to
adequately consult with the Tribe as prescribed by Section 3003(c)(3),
NEPA, and NHPA.
The Tribe has repeatedly attempted to engage the Forest Service in
consultations related to the land exchange including attempts to
develop a Memorandum of Understanding (MOU) to engage in consultation
under Section 3003(c)(3). In 2016, the Tribe worked hard in good faith
to reach an understanding with the Forest Service, but after many
months of deliberation to develop a final MOU, the Forest Service
eviscerated the previously agreed upon draft MOU. Efforts to reach an
MOU with the Forest Service finally collapsed in 2017.
So, the Forest Service ignored its Section 3003(c)(3) consultation
requirements and instead engaged in consultation solely under the NHPA
Section 106 process. Even so, the Forest Service failed to pursue
adequate government-to-government consultations that are critical to
the Section 106 process. In particular, the Forest Service failed to
conduct adequate consultations on appropriate identification efforts to
document historic properties; to evaluate the importance and
eligibility of identified historic properties; to assess the adverse
effects on those historic properties as a result of the mine; and to
resolve adverse effects.
TNF should withdraw the DEIS and begin actual government-to-
government consultation with affected tribes, including the San Carlos
Failure to Appropriately Consider the Impacts to Water Resources
Although it reveals significant impacts, the DEIS fails in a number
of ways to fully consider all of the impacts to the water resources of
the region as a result of the RCM project. Further, the water analysis
fails to account for the limited water resources of Arizona and the
broader effects that the RCM project will have on these water resources
into the future.
The Baseline Model for the DEIS Water Analysis is Flawed
The baseline model from which the DEIS uses to then measure future
impacts of the RCM project is terribly flawed. Since 2009, Resolution
Copper has been dewatering the deep aquifer from the East Plant site on
private property near the Oak Flat Withdrawal Area in order to begin
building its deep mine. For the last 5 years, the average pumping rate
to dewater the mine has been approximately 1,000 acre feet per year.
This has already resulted in a 2,000 foot decline in water levels in
the deep bedrock aquifer.
While this is clearly a significant impact of the project,
remarkably the current dewatering of the mine is considered to be a
baseline condition in the DEIS.\25\ Thus, the ``No Action'' alternative
in the modeling assumes that the mine dewatering will continue as-is
for the next 51 years even if the mine is never developed. Further, the
impacts of developing the mine, which includes additional dewatering,
are measured as the difference between this additional dewatering and
the baseline dewatering of the mine. This means that a huge proportion
of the dewatering of the mine is not even considered as part of the
mining project. As a result, the DEIS fails to fully capture the
impacts to water supplies and to the streams and other GDE's, and it
vastly underreports the amount of dewatering that will occur as a
result of the project. Including the current dewatering of the mine in
the baseline leads to the ridiculous idea in the DEIS that the ``No
Action'' alternative will result in drawdowns for 6 different springs
including 30-50 feet for the Bored Spring just west of Apache Leap,
which will likely cause it to dry up and destroy the riparian habitat
located there. The Forest Service should remove current dewatering
activities from its No Action alternative and accurately assess the
full impacts of the mining project.
\25\ DEIS, p. 300.
Limited Timeframe of Model
The Groundwater Modeling Workgroup decided that the results of the
model could only ``be reasonably assessed up to 200 years into the
future'' and thus, the DEIS only reports the quantitative results of
this model for 200 years.\26\ However, many hydrogeological impacts
take centuries to recover and can even get worse over time frames
longer than 200 years. The DEIS even notes that typically,
``[g]roundwater models are generally run until they reach a point where
the aquifer has sufficient time to react to an induced stress (in this
case, the effects of block-caving) and reach a new point of
equilibrium.'' \27\ In fact, the groundwater model was actually run for
1,000 years in order to approach equilibrium, but the DEIS only reports
the first 200 years of this analysis quantitatively. By limiting the
analysis to 200 years, the DEIS fails to fully account for significant
impacts, such as the fact that the analysis for Hidden Spring predicts
declining levels of water for up to 800 years as a result of the
project. Given the enormous scale and significant impacts of this
project on the region's environment, it is essential that the DEIS
accurately provide the full set of impacts, which will last for many
centuries even after the mine closes.
\26\ DEIS, p. 300.
\27\ DEIS, p. 300.
The Model Does Not Accurately Assessing the Hydrogeology of the Area
Given the complexity of the hydrogeology of the area with its
multiple faults, aquifers, and rock types and the enormous scale of the
mining project, it is a significant challenge to conduct an accurate
groundwater impact analysis. The Tribe has significant concerns with
the Forest Service's and Resolution Copper's understanding of the
hydrogeology of the area. For example, the DEIS asserts that the West
Boundary Fault, Concentrator Fault and other faults have limited the
extent of groundwater drawdown from current mine dewatering at Shafts 9
and 10 to the area within those faults. However, even under the ``No
Action'' plan which maintains current levels of dewatering, the DEIS
separately predicts that there will be significant drawdowns of water
to the west and under the Town of Superior. The scale of this project
and the possible impacts are simply too great to not have a complete
understanding of the hydrogeology of this area.
The DEIS Improperly Segments its Environmental Analysis
In its analysis of water resource impacts, the Forest Service
undertakes two separate analyses of the impacts of the dewatering of
the mine and of the impacts of pumping water from the Desert Wellfield.
The Forest Service uses separate computer models and model domains to
understand the hydrogeological impacts of these actions. Any effects of
aquifer drawdown from the Desert Wellfield are not considered in the
Mine Groundwater Model and vice versa. However, it is almost certain
that drawdown from these two pumping areas overlap. Thus, the
cumulative impacts of the mine dewatering and desert Wellfield pumping
are impossible to fully assess.
Inadequate Analysis of the Mine's Usage of Water on Regional Water
The DEIS estimates that the amount of water available for pumping
in the East Salt River Valley is 8.1 million acre feet, but there is no
discussion on where this estimate comes from or how likely this
estimate is to be true. In addition, the DEIS spends little time
discussing the direct impacts on well users. For each tailings site
alternative, the DEIS lists the potential drawdown (in the case of the
preferred alternative this is up to 199 feet), but there is no
discussion about how this will directly impact well users. Will
residents who use wells have to ultimately sink their wells 200 feet?
In addition, while the DEIS acknowledges that total demand on
groundwater could exceed the physically available groundwater, the DEIS
refuses to actually analyze this possibility and what this could mean
stating, ``it is not possible to quantify the cumulative water use in
the area.'' \28\ However, given the huge amounts of water that this
project requires and the limited amounts of actual groundwater
available, it is absolutely essential that the DEIS actually analyze
the cumulative impacts of pumping an additional 550,000 acre feet of
groundwater for a new mining project on well owners and water users
throughout the region.
\28\ DEIS, p. 342.
Impacts to Groundwater Dependent Ecosystems Understated
One of the critical aspects of the DEIS is to accurately assess the
project's impact to the many springs and perennial streams supporting
the GDEs. However, the DEIS notes, ``the inability of a regional
groundwater model to fully model the interaction of groundwater with
perennial or intermittent streams.'' \29\ Instead, the Groundwater
Modeling Workgroup arbitrarily decided that a finding of
hydrogeological impact would only be identified if the model predicted
at least a 10-foot drop in the groundwater elevation in the immediate
vicinity of a GDE. However, the model that was used had an uncertainty
of +/^ 10 feet, so all results below 10 feet were not considered an
impact. Yet, even the DEIS recognizes that drawdowns of less than 10
feet could in reality have serious impacts on some GDEs, including
drying up. Thus, the model that was used is simply unable to accurately
assess the full range of impacts on streams and GDEs as a result of the
mining project. There are likely more GDE's that are actually impacted,
but the model simply does not capture those impacts. The Forest Service
must undertake a new analysis with another model that can more
accurately assess the impacts to GDEs.
\29\ DEIS, p. 301.
Water Quality Impacts Understated
In analyzing the potential for water quality problems, the DEIS
notes that there are significant sulfide-bearing minerals such as
pyrite in the upper areas of the deposit that if interacted with oxygen
could cause acid rock drainage, which could pollute streams with toxic
metals. Much of this area will not be mined out and instead will
collapse into the crater. Incredibly, however, the DEIS makes the
assumption that these minerals will not come into contact with oxygen
and thus will not cause acid rock drainage. It is likely that oxygen
will penetrate the fracture zone and the DEIS likely vastly understates
the impacts of acid rock drainage.
The DEIS also considerably understates the water quality problems
associated with the tailings storage facility. There are 1.87 billion
tons of tailings that will need to be stored in perpetuity. The
tailings storage facility at the preferred alternative of Skunk Camp is
envisioned to be 3 miles long with 490 foot embankments covering 4,000
acres.\30\ The water quality impacts from tailings of a mine this size
are some of the most important issues to thoroughly analyze. However,
other than the Near West alternative proposed by Resolution Copper in
its GPO, there is no baseline hydrological or geotechnical data
provided for the tailings facilities alternatives in the DEIS. Not
unsurprisingly, the detailed analysis of the Near West alternative
showed significant water quality concerns from seepage. Yet, there is
no data supported site specific analysis for the other alternatives in
the DEIS. It is unconscionable to site a massive tailings facility with
huge potential impacts for the entire region without providing the
basic underlying analysis for making that decision.
\30\ DEIS, p. ES-20.
Failure to Fully Analyze the Preferred Alternative--Skunk Camp
The Skunk Camp tailings storage facility has been selected by TNF
as its preferred site. However, it was first examined late in the DEIS
process and has never been analyzed as thoroughly as the Near West
location preferred by Resolution Copper and the subject of the Baseline
Environmental Assessment and Record of Decision. Indeed, the
Environmental Protection Agency's comment on the DEIS analysis of the
Skunk Camp alternative expressed concern about the lack of field work
by TNF on the Skunk Camp location. The Skunk Camp site was not selected
by TNF based upon thorough analysis and planning. Nor was it selected
by TNF as the safest or least environmentally damaging site. Rather,
the DEIS admits that TNF selected the site because it has judged it to
be ``largely isolated'', simple to construct in that location, and
impacts to TNF lands are minimized. In other words, the ``out of sight,
out of mind'' mentality has prevailed.
The Skunk Camp site has significant safety and environmental damage
concerns. The seismic analysis performed by RCM and accepted by TNF
does not comply with the widely accepted 1:10,000 year industry
standard. Further, a geological fault runs through the middle of the
Skunk Camp site. With a tailings storage facility of this size, lives
are at risk if the embankments fail. Potential environmental damage is
also heightened for the Skunk Camp site because pipelines for tailings
slurry are longer (between 20 to 25 miles in length) than for any other
site. The pipelines for Skunk Camp will have to traverse rugged terrain
with its own set of geological faults. No analysis has been done on
this issue and the potential environmental impacts of a pipeline
The lack of field work has also resulted in a lack of information
provided to tribes on cultural, historic, sacred and heritage sites
within the Skunk Camp area of potential effect. The DEIS acknowledges
that the greatest number of cultural resources will be impacted at the
Skunk Camp site, between 318 and 343 sites, as compared to Alternatives
2 and 3 (101), Alternative 4 (122) and Alternative 5 (114-125).
The San Carlos Apache Tribe was not consulted about either the
Skunk Camp tailings storage facility location or the pipeline
locations. Skunk Camp planning was announced in the summer of 2018.
Sacred seeps and springs and culturally important sites were largely
inaccessible due to the large amount of private land in the area not
previously available for the Tribe's inspection. Skunk Camp is located
within San Carlos Apache ancestral territory and is located closest to
the Tribe's Reservation lands. It is important to consider that impacts
to cultural resource sites are not just site specific but are impacts
to the people who value, care about, care for, and derive their
identity and health from the affected cultural resources. The DEIS
fails to adequately or meaningfully analyze this variation in site
impacts and, by extension impacts to Apache people and communities.
TNF was in such a rush to issue the DEIS that the information and
analysis of the Skunk Camp alternative is incomplete. TNF has failed to
provide an evidence-based rationale for its selection of Skunk Camp.
Because the DEIS was released before significant public and tribal
involvement in the comparative analysis of tailings storage facility
alternatives, TNF has essentially eliminated public participation in
identifying the best site alternative for the tailings storage
Failure to Appropriately Consider Alternatives to Block Cave Mining
Resolution Copper intends to employ block cave mining at the RCM
project which will result in a 1.8 mile wide crater with profound
effects upon the environment. The block cave method requires that the
Apache Leap Tuff Aquifer, which is a source of water for many springs
and creeks, be dewatered. These permanent impacts would not occur if
alternative underground mining methods were used instead. However, the
Forest Service never conducted an adequate analysis of alternative
mining methods that could avoid these impacts because they simply
accepted Resolution Copper's assertion that any other method of mining
would be too expensive. But, how do you calculate the value of a sacred
area? How do you calculate the value of sacred springs and creeks? How
do you calculate the value of clean water? If these are gone forever,
are these not costs of the project, too? Are these not worth the effort
of exploring alternative mining methods?
For centuries, Oak Flat, Chi'chil Bildagoteel, has been a sacred
place for Apaches and other tribes. We conduct ceremonies there. We
pray there. We gather our medicinal plants and our Emory oak acorns. It
is a place of power, a holy place where we can practice our religion.
Because of these reasons and others, Oak Flat was listed as a
traditional cultural property on the National Register of Historic
The RCM project will destroy Chi'chil Bildagoteel. There is no
mitigation that can be done, no replacing Chi'chil Bildagoteel once it
is gone. We cannot build it somewhere else.
We know that most Members of Congress did not and do not support
this. We ask for your help to protect Oak Flat and to prevent it from
being transferred from federal land to a foreign owned mining company.
We ask for your support in requesting that the Tonto National Forest
withdraw the DEIS, to engage in government-to-government consultation,
and to take the time to conduct a thorough and fair analysis. Too much
is at stake to approve this project without fully understanding the
impacts of it.
Southside Presbyterian Church
Hon. Raul Grijalva, Chair,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.
Hon. Ruben Gallego, Chair,
Subcommittee for Indigenous Peoples of the United States,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: U.S. Forest Service (USFS) Resolution Copper EIS and H.R. 665/S.
173, Save Oak Flat Act
Congressmen Grijalva and Gallego:
I am writing to express my deepest gratitude for your actions to
protect Oak Flat from irreparable environmental and cultural impacts of
the proposed Resolution Copper mining operation at Tonto National
Forest. My congregation and I have been deeply concerned about the
proposed mining which would destroy a site that is sacred to our
siblings of the San Carlos Apache Nation. Others can speak with more
authority to the vast environmental damage that such mining would
cause; others can speak with more knowledge about how governmental
regulations have been tossed aside; and others can speak with more
wisdom about the vast amount of cultural and archeological damage that
would be done. But I am a pastor, and so I speak as a pastor who is
outraged that the religious freedoms and practices of the San Carlos
Apache are being denigrated by the proposed mining. As has been pointed
out by members of the San Carlos Apache, the proposed mining is like
bulldozing a church, or like mining on Mt Sinai, a mountain held sacred
by the Abrahamic faiths. I believe it to be a grave miscarriage of
justice and a threat to equal representation under the law that the
religious rights of some are heralded as sacrosanct, while the
religious right of native peoples are easily traded away for the
possibility of turning a profit.
It is time that we stop treating the religion of native peoples as
inconsequential and unrecognized. We must recognize that native
people's have religious freedoms that must be protected. We must also
stop treating the earth as only a vehicle for development and profit
and start recognizing that our fate is tied to the fate of our earth.
Thank you for all that you are doing to opposed this proposed
mining by Rio Tinto. In doing so you are not only protecting a sacred
piece of earth, but you are standing in support of the religious rights
of indigenous peoples in the United States.
With Deepest Regards,
White Mountain Apache Tribe
Executive Office of the Chairwoman
March 10, 2020
Hon. Raul M. Grijalva, Chairman,
Hon. Rob Bishop, Ranking Member
Hon. Ruben Gallego, Subcommittee Chair
Hon. Darren Soto, Subcommittee Member
Hon. Michael San Nicolas, Subcommittee Member
Hon. Deb Haaland, Subcommittee Member
Hon. Ed Case, Subcommittee Member
Hon. Matt Cartwright, Subcommittee Member
Hon. Jesus G. ``Chuy'' Garcia, Subcommittee Member
Natural Resources Committee,
Subcommittee on Indigenous Peoples of the United States,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: March 12, 2020, Oversight Hearing: Southeast Arizona Land Exchange
Act (Oak Flat Land Exchange)
Dear Members of the House Natural Resources Committee Subcommittee
on Indigenous Peoples of the United States:
The White Mountain Apache Tribe opposes the Southeast Arizona Land
Exchange Act, also known as the Oak Flat Land Exchange, that would
allow Resolution Copper, a joint venture mining company owned by two
foreign companies, Rio Pinto PLC (United Kingdom) and BHP Billiton,
Ltd. (Australia), to conduct a massive block cave copper mining project
on 2,242 acres of land within the Tonto National Forest, commonly known
as Oak Flat. Although our Tribe is a proponent of free enterprise and
economic development, we have opposed the Act since 2006 for reasons
The mining project will destroy and contaminate the aquifers below
the town of Superior, Arizona, and much further. The destruction of
national forest land and water does not benefit the American people. It
only serves foreign mining interests who will leave our country a
polluted site for centuries to come. The Land Exchange Act did not
consider the destructive long-term environmental impact the mine would
produce before it was enacted. It was simply attached to the 2015
National Defense Authorization Act to avoid the customary environmental
impact study, and to avoid further rejection by Congress.
The mine will also desecrate and destroy Apache sacred springs and
waters and will eradicate forever our traditional use of the Oak Flat
cultural and religious sites and acorn gathering locations. For
countless generations, we have been taught the sacredness of dobe'cho
da'szin (``Apache Leap''), chich'il bil nagosteel (``Oak Flat
campground''), and Gaan bikoh (``Devil's Canyon'') watershed and
stream. Oak Flat is an integral part of the ancestral homelands of the
Western Apache, Yavapai, Hopi, Zuni and the Tohono O'odham people, and
is formally listed in the U.S. National Register of Historic Places.
The White Mountain Apache Tribe respectively requests that the
Subcommittee recommend the protection of Oak Flat, the repeal of the
Land Exchange Act, and return of Oak Flat to the Tonto National Forest.
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
Pueblo of Tesuque: ``Support for H.R. 665/S. 173, Save Oak Flat
Act and Opposition to Resolution Copper Mine in Tonto National
Forest,'' Hon. Robert A. Mora, Governor, Pueblo of Tesuque,
dated March 11, 2020.
Access Fund: ``Comments on `The Irreparable Environmental and
Cultural Impacts of the Proposed Resolution Copper Mining
Operation','' Curt Shannon, Policy Analyst, dated March 26,
Anthropological Research, LLC: ``Statement for the Record: Oak
Flat is an Important Cultural Site for Nine Tribes, The
Resolution Copper Mine Will Impact Hundreds of Tribal
Traditional Cultural Properties,'' T.J. Ferguson, Maren P.
Hopkins, and Chip Colwell, Anthropological Research, LLC, March
``Native American Cultural Impacts and Ramifications of Mining
at Oak Flat,'' Nancy Freeman, dated March 25, 2020.
``U.S. Forest Service Resolution Copper EIS and H.R. 665/S.
173, Save Oak Flat Act,'' Rev. Karen MacDonald, dated March 11,
``U.S. Forest Service Resolution Copper EIS and H.R. 665/S.
173, Save Oak Flat Act,'' Sarah M. Roberts, dated March 12,
``U.S. Forest Service Resolution Copper EIS and H.R. 665/S.
173, Save Oak Flat Act,'' Hon. Thomas D. Wooten, Chairman,
Samish Indian Nation, dated March 10, 2020.
``Testimony of the Honorable Arthur ``Butch'' Blazer, Former
Deputy Under Secretary for Natural Resources and Environment,
U.S. Department of Agriculture,'' dated March 12, 2020.
``Comments on the Draft Environmental Impact Statement for the
Resolution Copper Project and Land Exchange,'' San Carlos
Apache Tribe, dated December 23, 2019.
The Wilderness Society: ``Statement for the Record,'' Mike
Quigley, Arizona State Director, dated March 11, 2020.
Letter to U.S. Department of Agriculture from the San Carlos
Apache Tribe, dated December 23, 2019.
White Mountain Apache Tribe: ``Resolution Opposing Proposed
Exploitation of Apache Leap, Oak Flat, ad Devil's Canyon (05-
2006-169),'' dated May 17, 2006.
Submissions for the Record by Dr. Steven H. Emerman
-- ``Potential Impact of Geothermal Water on the Financial
Success of the Resolution Copper Mine, Arizona,''
Dr. Steven H. Emerman, Malach Consulting, dated
September 14, 2018.
-- ``Projected Consumption of Electricity and Water by the
Proposed Resolution Copper Mine, Arizona,'' Dr.
Steven H. Emerman, Malach Consulting, dated March
-- Evaluation of Predictions of Land Subsidence due to Panel
Caving at the Resolution Copper Mine, Arizona,''
Dr. Steven H. Emerman, Malach Consulting, dated
March 17, 2019.
-- ``Evaluation of the Maximum Design Earthquake for the
Tailings Storage Facilities for the Proposed
Resolution Copper Mine, Arizona,'' Dr. Steven H.
Emerman, Malach Consulting, dated April 1, 2019.
-- March 12, 2020, Testimony PowerPoint Presentation, Dr.
Steven H. Emerman, Malach Consulting.
Submissions for the Record by Naelyn Pike
-- March 12, 2020, Testimony PowerPoint Presentation, Naelyn
Pike, Apache Stronghold.
Submissions for the Record by Dr. James Wells
-- March 12, 2020, Testimony PowerPoint Presentation, Dr.
James Wells, COO, L. Everett & Associates.
Submissions for the Record by Rep. Bishop
-- United Steelworkers, Letter for the Record from Roy
Houseman, Jr., Legislative Director, dated March
-- Tonto National Forest's Record of Tribal Consultation
Meetings for the Resolution Copper and Land
Exchange Project, 2008-2020, USDA Forest Service,
March 12, 2020.
-- Land Subsidence Monitoring Report No. 4, Arizona
Department of Water Resources, March 12, 2020.
-- Various Comments on Resolution Copper's DEIS--United
Steelworkers Union, Yavapai Apache Nation, White
Mountain Apache Tribe, Hon. Dennis DeConcini, Rep.
Andy Biggs, Rep. David Schweikert, County
Supervisors Association of Arizona, Town of
Superior, Town of Miami, City of Globe, City of
Apache Junction, Town of Florence, Mesa City
Council Member Kevin Thompson, USDA Forest Service,
City of Phoenix Vice Mayor Jim Waring, City of
Phoenix Councilman Sal DiCiccio, Arizona State Sen.
David Gowan, Arizona Chamber of Commerce and
Industry, Arizona State Rep. John Fillmore, Arizona
State Sen. Karen Fann, Arizona State Rep. Shawnna
Bolick, Arizona State Rep. Cesar Chavez, Arizona
State Rep. Daniel Hernandez, Jr. Arizona State Rep.
Mark Finchem, Arizona State Rep. Regina E. Cobb,
Arizona State Rep. Leo Biasiucci, Arizona State
Rep. Jeff Weninger, Arizona State Rep. Lorenzo
Sierra, Arizona State Rep. Kevin Payne, Arizona
State Rep. Steve Pierce, Arizona State Rep. Robert
Meza, Pinal Country Supervisor Pete Rios, Robert A.
Reveles, Arizona State Sen. Dave Bradley, Arizona
State Sen. Heather Carter, Arizona State Sen. Eddie
Farnsworth, Arizona State Sen. Vince Leach, Arizona
State Sen. Sylvia Allen, Arizona State Sen. Rick
Gray, Arizona State Sen. Sine Kerr, University of
Arizona Professor George Ruyle, Arizona Rock
Products Association Executive Director Steve
Trussell, Superior Community Working Group, Great
Florence Chamber of Commerce Executive Director
Roger Biede, Globe-Miami Regional Chamber of
Commerce Executive Director Tianna Holder, Rebuild
Superior, Inc., Superior Chamber of Commerce,
Oddonetto Construction, Inc. (Various Dates)
-- Op-Ed: ``My Turn: Oak Flat a sacred site? News to me.''
AZ Central, by Dale Miles, dated July 23, 2015.
-- Resolution Copper Submission for the Record, March 12,
-- Rep. Paul Gosar Statement for the Record, March 12, 2020.