Parks and Lands Bills

Statement of

Marcilynn Burke,

Deputy Director

Bureau of Land Management

Department of the Interior

House Natural Resources Committee

Subcommittee on National Parks, Forests and Public Lands

H.R. 1904, Southeast Arizona Land Exchange and Conservation Act

June 14, 2011

Thank you for the opportunity to testify on H.R. 1904, the Southeast Arizona Land Exchange and Conservation Act. The legislation provides for the exchange of a 2,422-acre parcel of U.S. Forest Service-managed land to a private company in exchange for a number of parcels within the State of Arizona for management by the U.S. Forest Service (FS) and the Bureau of Land Management (BLM). Three of the private parcels are identified for transfer to the Secretary of the Interior. In general, the Department of the Interior (DOI) defers to the FS on the issues directly related to FS-lands and associated valuation issues. We believe that the intent of the legislation is to facilitate an exchange of land with Resolution Copper Mining, LLC. Resolution Copper has indicated its intention to develop a copper mine near Superior, Arizona, and wishes to acquire the 2,422-acre Forest Service parcel overlying the copper deposit as well as the Federal subsurface rights.

Conveyance of Parcels to the Bureau of Land Management

We note that while the bill states that three parcels are to be conveyed to the Secretary of the Interior, it is our understanding that the Sponsor intends for the parcels to be placed under the administrative jurisdiction of the BLM. The parcels identified are located in Gila, Pinal, and Santa Cruz Counties and include:

• 3,050 acres along the Lower San Pedro River near Mammoth, Arizona;
• 160 acres within the Dripping Springs area near Kearny, Arizona; and
• the 940-acre Appleton Ranch parcel adjacent to the Las Cienegas National Conservation Area near Sonoita, Arizona.

The legislation references maps for these three parcels dated March 2011. The Sponsor's office informs us that these maps do not exist and that the Sponsor intends to use the boundaries delineated on the maps dated June 3, 2009, which the BLM previously prepared for Senator Kyl of Arizona. The BLM would be happy to prepare new maps for H.R. 1904 if requested.

The lower San Pedro parcel is east of the town of Mammoth, Arizona, and straddles the San Pedro River. The acquisition of these lands would enhance key migratory bird habitat along the San Pedro River. H.R. 1904 provides for the lower San Pedro parcel to be managed as part of the BLM's existing San Pedro Riparian National Conservation Area (NCA) designated by Public Law 100-696. The lower San Pedro parcel lies along the same riparian corridor as the San Pedro NCA, but it is at least 60 miles downstream (north) of the existing NCA and has substantially different resource issues and needs. If this parcel is conveyed to the Secretary the Interior and incorporated into the NCA, the Department recommends that the existing 80 acres of adjacent BLM-managed public land likewise be included within the NCA to facilitate the efficient and effective management of this important riparian corridor.

The legislation also proposes to transfer 160 acres in the Dripping Springs area near Kearny, Arizona to the Secretary of the Interior. This private parcel is an inholding within a larger block of public lands and has important resource values, including sensitive Desert Tortoise habitat.

Finally, the bill provides for the transfer of the 940-acre Appleton Ranch parcel to the Secretary of the Interior. This parcel is located on the southern end of the BLM's Las Cienegas NCA. These lands lie within the "Sonoita Valley Acquisition Planning District" established by Public Law 106-538, which designated the Las Cienegas NCA. That law directs the Department to acquire lands from willing sellers within the planning district for inclusion in the NCA to further protect the important resource values for which the NCA was designated. These lands are part of a significant wildlife corridor. The acquisition of these lands advances important conservation goals associated with this unique and special natural resource and is consistent with the President's America's Great Outdoors initiative.

General Concerns

The Department has several concerns with the bill and cannot support the bill as written. Among these concerns are the timing of consultations with interested Indian Tribes, the timing of the exchange, appraisal provisions, and value adjustment provisions.

Concerns have been raised by Indian Tribes that the bill is contrary to various laws and policies and Executive Orders that direct Federal land managing agencies to engage in formal consultation with interested Indian Tribes, and to protect and preserve sites that are sacred to Native Americans.

Many of the lands to be exchanged in the bill hold significant cultural value to Indian Tribes. In particular, the Apache Leap area, the Oak Flat Campground, and Devil's Canyon are culturally significant to the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation. There are also other neighboring Tribes with cultural interests in the area. The Department recommends the Secretary of the Interior be included, along with the Secretary of Agriculture in the consultation required in the legislation when it relates to Indian tribes. However, the Department is concerned that any consultations under this H.R. 1904 would not be meaningful under Executive Order 13175, "Consultation and Coordination with Indian Tribal Government", because the Secretary's discretion regarding the land exchange is limited.

Section 4(i) of the legislation expresses the intent of Congress that the exchange be completed within one year. Based on our experience with exchanges, we believe this amount of time is insufficient to complete and review the necessary environmental documents, mineral report, appraisals, as well as to conduct the final verification and prepare title documents. We are also concerned that one year may not be sufficient to complete analysis of any historic and sacred sites in the exchange area as required by the Native American Graves Protection Act and the National Historic Preservation Act.

Preparation of a mineral report is a crucial first step toward an appraisal of the Federal parcel because the report provides important information about the Federal mineral deposit. The bill does not address access to confidential exploration and development data and company analyses on the mineral deposits underlying the Federal land in order to ensure a timely and accurate appraisal. Such information is essential for the mineral report, particularly in the context of this exchange, because of the size of the proposed mining operation and the proposed mining technique.

Section 6 of H.R. 1904 provides for an annual value adjustment payment to the United States if the cumulative production of locatable minerals exceeds the projected production used in the appraisal required by section 4(d)(3). This provision recognizes that an accurate projection of future production as part of the appraisal process will be difficult to develop, and provides a mechanism for additional payments to the United States if the actual production exceeds the projected production. The Department generally defers to the FS on the specific provisions of section 6 of the bill. However, we note that this section creates a new fund in the U.S. Treasury for the deposit of these value adjustment payments. The Department recommends that these funds be dedicated to Federal land acquisition in the same manner as the initial land equalization payments provided for in section 4(e)(2)(C) of the bill. Because these funds are to compensate for a possible initial inadvertent under-appraisal of land values, it is appropriate that the value when captured be used in the same manner as if it had been included in the initial appraisal.

Finally, there are a number of issues of a more technical nature that we would welcome the opportunity to discuss as this legislation moves forward.

Conclusion

Thank you for the opportunity to testify. The exchange proposed in H.R. 1904 is complex. The Departments of Agriculture and Interior seek to assure that the Federal government's interest is appropriately protected in any final legislation.