Week Ending September 20, 2013
H.R.687 Southeast Arizona Land Exchange and Conservation Act of 2013
In General- Subject to the provisions of this Act, if Resolution Copper offers to convey to the United States all right, title, and interest of Resolution Copper in and to the non-Federal land, the Secretary is authorized and directed to convey to Resolution Copper, all right, title, and interest of the United States in and to the Federal land. The value of the Federal land and non-Federal land to be exchanged under this Act shall be equal or shall be equalized. The bill waives any input from Tribal governments whose land would be affected by this bill.
Resolution Copper Mining, LLC (Resolution Copper) is a subsidiary of Rio Tinto and BHP-Billiton. Resolution Copper owns land and holds mining claims on the Tonto National Forest in Southeastern Arizona. The company believes the area is home to a significant copper deposit and is seeking to develop a lucrative copper mining operation. However, approximately 760 acres of national forest land in the area was withdrawn from mining by President Eisenhower in 1955. Resolution Copper is seeking H.R. 687 to require the federal government to exchange the withdrawn forest land for land owned by the Company so that the mining operation can proceed.
Resolution Copper Mining LLC (Resolution Copper) owns land and holds mining claims near the Town of Superior, in southeastern Arizona. In the late 1990s, Resolution Copper’s exploratory activities revealed the existence of a very large copper deposit on its claims, located between 4,500 to 7,000 feet below the surface. Resolution Copper is interested in developing a large underground mine where the ore would be extracted and removed.
If Resolution Copper Mining, LLC offers to convey specified parcels of non-federal land in Gila, Yavapi, Maricopa, Coconino, Pinal, and/or Santa Cruz Counties, Arizona, that are acceptable to the Secretary of Agriculture or the Secretary of the Interior, to convey certain federal land in Pinal County, Arizona, to Resolution Copper for use for mining and related activities.
Lands acquired by the Secretary under this Act part of the National Forest within which the land is located. The bill adds certain of the non-federal land acquired by the Secretary of the Interior in Pinal and Santa Cruz Counties to the San Pedro Riparian and Las Cienegas National Conservation Areas, respectively, and requires Resolution Copper to make value adjustment payments to the United States based upon locatable minerals produced from the federal land in Pinal County. Resolution Copper is instructed to surrender, without compensation, the rights held by it under mining and other U.S. laws to commercially extract minerals under Apache Leap and special use permits are authorized that allow Resolution Copper to carry out underground activities (other than the commercial extraction of minerals) under the surface of Apache Leap that would not disturb the surface.
The bill also directs the Secretary to convey specified lands in Pinal County to the town of Superior, Arizona.
Congress finds that the land exchange furthers public including–
(A) promoting significant job and other economic opportunities in a part of the State of Arizona that has a long history of mining, but is currently experiencing high unemployment rates and economic difficulties;
(B) facilitating the development of a world-class domestic copper deposit capable of meeting a significant portion of the annual United States demand for this strategic and important mineral, in an area which has already been subject to mining operations;
(C) significantly enhancing Federal, State, and local revenue collections in a time of severe governmental budget shortfalls;
(D) securing Federal ownership and protection of land with significant fish and wildlife, recreational, scenic, water, riparian, cultural, and other public values;
(E) assisting more efficient Federal land management via Federal acquisition of land for addition to the Las Cienegas and San Pedro National Conservation Areas, and to the Tonto and Coconino National Forests;
(F) providing opportunity for community expansion and economic diversification adjacent to the towns of Superior, Miami, and Globe, Arizona; and
(G) protecting the cultural resources and other values of the Apache Leap escarpment located near Superior, Arizona; and
(2) the land exchange is, therefore, in the public interest.
(1) APACHE LEAP- The term `Apache Leap’ means the approximately 807 acres of land depicted on the map entitled `Southeast Arizona Land Exchange and Conservation Act of 2013-Apache Leap’ and dated February 2013.
(2) FEDERAL LAND- The term `Federal land’ means the approximately 2,422 acres of land located in Pinal County, Arizona, depicted on the map entitled `Southeast Arizona Land Exchange and Conservation Act of 2013-Federal Parcel-Oak Flat’ and dated February 2013.
(3) INDIAN TRIBE- The term `Indian tribe’ has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).
(4) NON-FEDERAL LAND- The term `non-Federal land’ means the parcels of land owned by Resolution Copper that are described in section 5(a) and, if necessary to equalize the land exchange under section 4, section 4(e)(2)(A)(i).
(5) OAK FLAT CAMPGROUND- The term `Oak Flat Campground’ means the approximately 50 acres of land comprising approximately 16 developed campsites depicted on the map entitled `Southeast Arizona Land Exchange and Conservation Act of 2013-Oak Flat Campground’ and dated February 2013.
(6) OAK FLAT WITHDRAWAL AREA- The term `Oak Flat Withdrawal Area’ means the approximately 760 acres of land depicted on the map entitled `Southeast Arizona Land Exchange and Conservation Act of 2013-Oak Flat Withdrawal Area’ and dated February 2013.
(7) RESOLUTION COPPER- The term `Resolution Copper’ means Resolution Copper Mining, LLC, a Delaware limited liability company, including any successor, assign, affiliate, member, or joint venturer of Resolution Copper Mining, LLC.
If the final appraised value of the Federal land exceeds the value of the non-Federal land, Resolution Copper shall–
(i) convey additional non-Federal land in the State to the Secretary or the Secretary of the Interior, consistent with the requirements of this Act and subject to the approval of the applicable Secretary;
(ii) make a cash payment to the United States; or
(iii) use a combination of the methods described in clauses (i) and (ii), as agreed to by Resolution Copper, the Secretary, and the Secretary of the Interior.
(B) AMOUNT OF PAYMENT- The Secretary may accept a payment in excess of 25 percent of the total value of the land or interests conveyed. The amount of land the government receives is about 6200 acres. Resolution Copper shall pay to the United States, by not later than March 15 of each applicable calendar year, a value adjustment payment for the quantity of excess production
Sponsor: Rep Gosar, Paul A. [AZ-4]
House on Passage: Vote expected Friday, September 20th
An amendment, offered by Mr. Grijalva, numbered 1 printed in Part A of House Report 113-215 to guarantee the jobs this mine does create benefit the local community by requiring that the Remote Operating Center be located in the town of Superior, Arizona or an adjacent mining community. On agreeing to the Grijalva amendment; Failed by recorded vote: (Roll no. 489).
An amendment, offered by Mr. Lujan, Ben Ray (NM), numbered 2 printed in Part A of House Report 113-215 to require the Secretary to remove Native American sacred and cultural sites from the conveyance in consultation with affected Indian Tribes.
An amendment, offered by Mrs. Napolitano, numbered 3 printed in Part A of House Report 113-215 to protect water quality and water quantity for the people living and working near this proposed mine, given estimates that mining operations will consume the equivalent of the annual water supply for 20,000 homes. On agreeing to the Napolitano amendment; Failed by recorded vote: (Roll no. 490).
Motion to recommit.
Text of the motion:
Senate on Passage:
OTHER BILL DATA
Cost to the taxpayers: CBO estimates that implementing the bill would cost less than $500,000 annually, assuming the availability of appropriated funds. Those costs would include preparing management plans and administering private lands received in exchange for federal land.
Pay-as-you-go requirements: Because enacting the bill could affect direct spending, pay-as-you-go procedures apply.
Regulatory and other impact: The bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments.
Earmark Certification: This bill does not contain any Congressional earmarks, limited tax benefits, or limited tariff benefits as defined under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of the House of Representatives.
Duplication of programs: . This bill does not establish or reauthorize a program of the federal government known to be duplicative of another program.
Constitutional Authority: By Mr. GOSAR:
Congress has the power to enact this legislation pursuant to the following: Article IV of the Constitution provides the authority of Congress over federal property as a general matter. Article IV, Sec. 3 refers to the managerial authority over property owned by the Federal Government, and provides in relevant part:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . .
By virtue of this enumerated power, Congress has governing authority over the lands, territories, or other property of the United States–and with this authority Congress is vested with the power accredited to all owners in fee, the power to sell, lease, dispose, exchange, transfer, trade, mine, or simply preserve land. The appropriate acreage to be held under Federal dominance is not the subject of this bill. Turning to the power of Article IV, Sec. 3, the Supreme Court has described this enumerated grant as one “without limitation” Kleppe v. New Mexico, 426 U.S. 529, 542-543 (1976) (“And while the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that `[t]he power over the public land thus entrusted to Congress is without limitations’ ” Citing United States v. San Francisco, 310 U.S. 29. The Court in Kleppe further explained that “In short, Congress exercises the powers both of a proprietor and of a legislature over the public domain.” Id.
Like any “propiretor” Congress has the power to sell or exchange federal property.
It is now generally accepted that the Federal Government may own and manage property in the manner and form mandated by Congress. United States v. Gratiot, 39 U.S. 526 (1840); Camfield v. United States, 167 U.S. 518 (1897). However, the wisdom of the Federal Government owning large tracts of land, particularly in the Western States, is subject to question on policy grounds, and some contend on Constitutional grounds based on the decision in Pollard’s Lessee v. Hagan, 44 U.S. 212 (where the Court stated that “a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new States were formed, except for temporary purposes . . . .”
Historically, the early federal government transferred ownership of federal property to either private ownership or to state ownership in order to pay off the then crushing Revolutionary War debts and to assist with the development of infrastructure. These are still acceptable goals for federal property sale or transfer. The land exchange here is one that comports with good policy and constitutional strictures since by exchanging the land set forth in this bill, a large commercial grade copper mine will be able to proceed with the attendant economic benefits with which such a proposition inures (assuming compliance with other requirements set forth in the bill), but the Federal Government also gains equally valuable land that has significance for other purposes.
Article 1, Sec. 8, Cl. 17 addresses property ceded by a tate and conveys exclusive regulatory federal jurisdiction over these federal properties and enclaves. Section 8, Cl, 17 may also provide some guidance here to the extent it grants Congress the power to “exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” But it is Article IV that this bill is grounded upon.