Course:CONS370/Projects/Protecting the Inherent Value of Oak Flats, Arizona, USA from Copper Mining by the Apache Native Nation

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For decades now, parties have been fighting over the use of the land in Oak Flat, Arizona. Most recently, companies Rio Tinto and BHP have proposed a copper mining operation take place there. The site of the proposed mine is located southeast of Phoenix, Arizona in the southern end of the Tonto National Forest. This proposition has been met with lots of controversy as the land holds historic and cultural value for the many Indigenous tribes that inhabit the area, especially the Western Apaches.

Tonto National Forest. Part of which will be negatively impacted by the Resolution Copper Mine.

Description

In 2015, a land exchange was passed [from xx under the authority of Law xx] that would give 2,422 acres [= xx hectares] of the Tonto National Forest to Resolution Copper and gave the company authorization to start mining the copper ore underground this public land.[1] Unfortunately, sitting right on top of this largest untapped copper reservoir of North America is, Oak Flat, a public campground that is a popular recreational destination for hiking, rock climbing and swimming. But most importantly, it is listed in the U.S. National Registrar of Historic Places as it is a sacred site to many Apache Tribes and Native Americans. [2] Oak Flat, known to Apaches as Chi’chil Bildagoteel, is the single largest Apache Archaeological site ever known with numerous artifacts dating their practices, traditions and culture since time immemorial.[3] The mining technique being proposed to be used would cause the surface to subside, creating a large crater, and destroying the surface, making it unusable by anyone. [4]

Tenure arrangements

Archaeological and linguistic evidence dates the arrival of the Western Apache Tribes into Arizona between 1000 and 1500 A.D. [5] Mexico then claimed the Apache homelands until the 1848 Treaty that ended the American-Mexican war which ceded the territory of Arizona to America.[6] Then in the late 1800s, the United States began the genocide against Western Indians including the Apache, despite the previous signing of the Treaty with the Apache in 1852. [3] The Treaty states the Apaches must live under U.S. laws and jurisdictions and for the U.S. to legislate appropriately to ensure the "permanent prosperity and happiness of said Indians." [7]

Fast forward to the 20th century, most Indigenous tribes in Arizona, like the Apache, live on reservations on federal land. [5] In 1955, President Dwight D. Eisenhower signed Public Land Order (PLO) 1229 which protected the 760 acres of Oak Flat from "all forms of appropriation under public land laws," including mining. [8] However, in 1971, President Richard M. Nixon signed PLO 5132 which amended PLO 1229 and let Oak Flat be subject to any form of appropriation under public land laws except mining. This was essentially a loophole around the protection of Oak Flat, as the land can't be mined under federal ownership, but can now be put up for a land exchange. [9]

Land Exchange of Tonto National Forest and Oak Flat

Since 2005, the Arizona Senator John McCain had been trying to pass versions of the Arizona Land Exchange and Conservation Act. This Act would swap 2,422 acres of Tonto National Forest to Resolution Copper (including Oak Flats) in exchange for scattered patches of conservation lands owned by the mining company. His attempts were repeatedly blocked and failed.[10] So in 2015, McCain buried the deal in the National Defense Authorization Act, a 1,600 page, $500 billion bill funding the US military.[11] Special agreements the bill was introduced under prevented any amendments and the bill passed with the land swap included. The land Resolution Co. gave in the swap isn’t worth even half the environmental and touristic value of Oak Flats as it is scattered across the USA in many patches.

Administrative arrangements

Land exchanges are conducted administratively through the United States Forest Service (USFS) or the Bureau of Land Management (BLM) and must abide by the Federal Land Policy and Management Act (FLPMA). [12]Under FLPMA, land exchanges are only permitted if the agency (USFS or BLM) "determines that the public interest will be well served by making that exchange".[12] Determination of the public interest must consider better Federal land management as well as the needs of the state and its people, which includes "needs for the economy, community expansion, reaction areas, food fiber, minerals, and fish and wildlife." [12]In addition, the private lands acquired can't be less valuable than the federal lands to be traded. This is clearly not the case when it comes the land exchange for Tonto National Forest as the private lands exchanged are not worth half the environmental or touristic value of Oak Flats.

Land exchanges that will significantly affect the quality of the environment, like mining, also need to adhere to the National Environmental Policy Act of 1969 (NEPA) which requires federal agencies to include an environmental impact statement (EIS)[13]. An EIS sets out the unavoidable environmental impacts that will happen, with alternatives to the proposed action. So the proposed agency action can proceed, no matter how destructive it may be, as long as the public is informed and the administrative system is transparent[13].

Unfortunately, land exchanges via the US Congress are not required to go through these procedural requirements and there is little case law regarding it[13]. Under the Property Clause, Congress has unlimited power to disregard or make any rules and regulations regarding territory or other property belonging to the US. Past precedent has had the US Supreme Court uphold this power many times. [14]

In general, the Secretary of Agriculture engages in government-to-government consultation with the affected Indian tribes concerning issues related to land exchange[15]. Following the consultations, the Secretary shall consult with Resolution Copper and find mutually acceptable measures to address the affected Indian tribes’ concerns and to minimize the adverse effects that would result from mining and other related activities on the Federal land conveyed to Resolution Copper[15].

Affected Stakeholders

Local Indigenous Tribes

Arguably the largest and most vocal stakeholder in this controversial situation is the San Carlos Apache Tribe. They are recognized as one of 10 tribes in the area who have historical ties to the land associated with the proposed Resolution Copper Mine. [3]

File:Flag of the San Carlos Apache Tribe.PNG
The San Carlos Apache Tribe's Flag.

For many generations they have inhabited the land, relying on it for resources such as medicinal plants and water [16]. Other stakeholders in the area include the 9 other Indigenous tribes that are affected by this land development. Of these 9 tribes, 3 are other Apache tribes. These include the Payson Tonto Apache Tribe, Yavapai-Apache Nation and the White Mountain Apache Tribe [3]. The other 6 represent the O’odham Tradition, the Yavapai Tradition, the Yavapai-Prescott Indian, the Hopi Tradition and the Zuni Tradition [3]. The region affected by this mining endeavour will affect all these Indigenous groups as they all have inherent and physical ties to this land. Reports conducted by Elders of these various groups highlighted over 400 sites and 46 springs located in the impacted area that have cultural significance to at least one of these groups [3]. Although these groups share generations worth of connections with this land, they have little power over it. As citizens of the United States, they can voice their opinion, demonstrate their discontent through social movements but they don’t have much say in the final legislative decisions that are made for the land. This group’s objective is simply to keep the land as it is. The proposed mining operation will significantly impact a vast area of land and completely obliterate Oak Flats, taking with it the historical and cultural significance of the area [17]. Local Indigenous groups are looking to prevent permanent damage to an area that means so much to them.

Apache Stronghold

The Apache Stronghold is made up of a wide range of community members and groups. It is a nonprofit community organization of individuals who have a shared interest in preserving Oak Flats. This local non-governmental organization (NGO) represents the vested interests of the Indigenous communities in the area. It is made up of Indigenous and Non-Indigenous allies from all corners of the world [16]. The stronghold was formed with one goal in mind- defending Holy Sites for Indigenous Peoples, specifically Chi’Chil Bildagoteel [16]. The stronghold holds no direct power over the land itself. This NGO has proven to be a loud voice and a strong leader in defence but they do not hold any inherent power over the area.

Tourists

The Oak Flat area is also known for its world famous rock climbing and hiking. The Tonto National Forest is home to stunning large rock formations that lure outdoor enthusiasts from around the world [18]. Should this area undergo the proposed transformation due to the implementation of mining, there will be no more access to outdoor recreation in the area. The lack of visitors could present a cascading negative effect for other businesses and industries in the area. Although the tourists themselves have no direct control over the land, their use of it and visitation of the area should be taken into account as an important indicator of the value the land holds.

Non-Human Beings

The endemic Arizona Hedgehog Cactus.

This unique landscape is also home to an extraordinary diversity of flora and fauna. Among them is the endemic Arizona hedgehog cactus. This plant has been listed as an endangered species since the late 1970s [18]. The area that would be destroyed by the proposed mine largely encompasses this species' natural range. Without this landscape we risk truly pushing this species to extinction. The non-human beings in this area have no say at all in what occurs on this land. Although they call this land home, arguably more than anyone else, they are seldom considered when large scale industrial land decisions are made. The loss of a single cactus species seems minor to some stakeholders when they look at the larger situation.

Interested Outside Stakeholders

US Federal Government

Many branches of the federal government have played a large role in this dispute throughout the years. Tonto National Forest is one of many protected forests in the United States. These National Forests are managed by the United States Forest Service, a branch of the federal government. Although the federal government regulates these forests, they are technically owned by the American people. The government’s role in Oak Flat dates back many years, but a significant moment took place around 60 years ago when President Eisenhower deemed the Oak Flat area closed to mining. Since then, corporations like Rio Tinto and BHP have been fighting to amend that Act in order to mine in the area. This drastically changed in 2014 when Senator McCain secured the passing of a new defence funding bill, that included a stipulation allowing mining in the Oak Flat area (REF).  The government holds significant power over what occurs on the land which administers Federal Lands on behalf of the American people. The government still deems what is permitted on Federal lands.

Rio Tinto & BHP Billiton Group

These two companies are world leaders in the mining industry. Both are recognized as top producers of iron ore and other resources [19][20]. Rio Tinto and BHP have arguably the largest economic stake in this situation. The building of this mine will produce the largest mine of its kind in North America [17]. Allowing for both companies to profit from the extraction of a considerably large chunk of resources. These companies hold little direct power over what occurs on the land. However, companies like this often hold their power over government officials who have a large say in what occurs. In this situation, it was brought to light that Senator McCain was receiving campaign contributions from Rio Tinto and therefore likely had their best interest in mind when moving forward with bill-related decisions [18].  

Efforts for Change

Panoramic view of San Carlos Apache Reserve land.

45 Mile March

In late February 2020, southeastern Arizona saw hundreds of individuals march against the proposed Resolution Copper Mine. This march took place over four days and brought protesters through the San Carlos Apache Indian Reservation to a sacred campground [17]. This year marked the 6th annual march [21]. Each year individuals travel 45 miles by foot in solidarity with their land. The Apache Stronghold and their allies use this opportunity to remind everyone of the spiritual and cultural importance that lies between the land and them [21].

Social movements like this have proven time and time again to leave a meaningful mark on controversial situations. In Oak Flat, the march has become a significant annual event that is held sacred by many. The march allows the local Indigenous communities an opportunity to show other stakeholders just how much inherent value the land possess.

Save Oak Flat Act

Raul Grijalva, the U.S. Representative for Arizona's third congressional district, introduced the Save Oak Flat Act in early 2019. This Act cancels the mandated land swap threatening the sacred Apache Leap site from the high-risk copper mining and reverses a provision in the National Defense Authorization Act of 2015 that granted Resolution Copper ownership of Oak Flat[22]. The San Carlos Apache Tribe was not consulted with before the measure became law, and the mining project does not have anything to do with security or national defense[22]. The land transfer was done secretly without regular order or transparency and so the mine should not be able to proceed[22]. The Save Oak Flat Act is in the first stage of the legislative process[22].

Recommendations

For the Apache People and Locals

While the legislation has authorized the land transfer, the actual transfer is not completed until a federal Environmental Impact Statement (EIS) is completed, which is a process that takes several years[23]. There is still time for the Apache people to continue fighting against the mining companies trying to profit off their land. Their continued efforts of activism, such as the annual protester’s march and support for the passing of the Save Oak Flat Act, will showcase the importance of their tribal land and the injustices they have faced from the government, and hopefully influence federal Indian policy and create change.

Local organizations in the area dedicated in protecting the environment can join forces and work together to create solutions to protect the communities in the surrounding area, the sacred ground of the Apache people and the earth’s natural resources. Local environmental groups have already pointed out major flaws in the federal analysis, and analyses they have missed[23]. The huge adverse effects of the copper mine being built needs to be brought to awareness to stop Resolution Copper from taking away all of Oak Flat from the Apache people.

For the Mining Companies

If the mine project has to go through, Resolution Co. should not be using block caving/panel caving methods to mine the area. This method, though efficient and cost-effective for maximum profits, will cause the subsidence of the surface and eventually create a giant mile-wide crater. They should use the traditional cut-and-fill method that backfills the void with mining waste and won’t cause the surface to collapse[24]. With the surface intact, sacred sites, campgrounds and rock climbing cliffs won’t be destroyed forever and Resolution can get the copper safely. A subsidiary of the largest mining companies in the world shouldn’t have any trouble still profiting from this mine even with a more expensive method.

For the U.S. Government

They should require royalty payments for future resource extractions when produced on federal land. Oil and gas are subject to royalties and minerals such as copper should be the same. In the future, there should be proper consultation between the government and the affected Indigenous Tribes before the passing of any land exchange bill as should be under the Federal Trust responsibility to protect tribal lands on federal lands[25].

References

  1. "Land Exchange". Resolution Copper. Retrieved April 10, 2020.
  2. "National Register of Historic Places". National Park Service. Retrieved April 10, 2020.
  3. 3.0 3.1 3.2 3.3 3.4 3.5 Welch, John (December 22, 2017). "Earth, Wind, and Fire: Pinal Apaches, Miners, and Genocide in Central Arizona, 1859-1874". Sage Journals. 7.
  4. "Oak Flat/Apache Leap". Earthworks. Retrieved April 10, 2020.
  5. 5.0 5.1 "Apache". Museum of Northern Arizona. Retrieved April 10, 2020.
  6. "The Treaty of Guadalupe Hidalgo". National Archives. Retrieved April 10, 2020.
  7. "Treaty with Apache, July 1, 1852". Yale Law Library. Retrieved April 10, 2020.
  8. "Project Scope" (PDF). USDA Forest Service. Retrieved April 10, 2020.
  9. Briggs, David F. (June 9, 2015). "Resolution Copper - Setting the Record Straight About Oak Flat". Arizona Daily Independent. Retrieved April 10, 2020.
  10. Davidson, Osha Gray (February 2, 2016). "How a Huge Arizona Mining Deal Was Passed". High Country News. Retrieved April 12, 2020.
  11. "National Defense Authorization Act for Fiscal Year 2014" (PDF). Congress. Dec 26, 2013. Retrieved April 10, 2020.
  12. 12.0 12.1 12.2 "The Federal Land Policy and Management Act of 1976" (PDF). Bureau of Land Management. Retrieved April 10, 2020.
  13. 13.0 13.1 13.2 Lovett, Katharine E. (2017). "Not All Land Exchanges Are Created Equal: A Case Study of the Oak Flat Land Exchange" (PDF). Colo. Nat. Resources, Energy & Envtl. L. Rev. 28:2: 353–387.
  14. "Article IV". Interactive Constitution. Retrieved April 10, 2020.
  15. 15.0 15.1 Southeast Arizona land exchange and conservation Act, 16 USC 539p (2013). Retrieved from [1]
  16. 16.0 16.1 16.2 "Apache-Stronghold About Us". Apache-Stronghold. 2020.
  17. 17.0 17.1 17.2 Reuters (2020). "Apache tribe marches to protect sacred Arizona site from copper mine". Thomson Reuters Foundation News.
  18. 18.0 18.1 18.2 "Oak Flat". Center for Biological Diversity.
  19. "About". RioTinto. 2020.
  20. "About Us". BHP.
  21. 21.0 21.1 "March to Oak Flat". Apache-Stronghold.
  22. 22.0 22.1 22.2 22.3 "Chairman Grijalva, Sen. Sanders Introduce Bills to Prevent Mining Activities on Sacred Apache Tribal Land Given Away in 2015 Defense Bill". January 2019. Retrieved April 12, 2020.
  23. 23.0 23.1 "Oak Flat/Apache Leap". Earthworks. Retrieved April 10, 2020.
  24. "Underground Mining Methods". New Pacific Metals. February 26, 2018. Retrieved April 12, 2020.
  25. "American Indians and Alaska Natives - The Trust Responsibility". Administration for Native Americans. March 19, 2014. Retrieved April 12, 2020.


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