Acquiring U.S. land if you’re a foreign multinational

The 2015 appropriations bill enacted by the U.S. federal government transferred 2,422 acres of National Forest land in Arizona from public ownership by the American people to private ownership by Resolution Mining, a foreign multinational mining corporation.  In exchange, Resolution Mining must transfer other land it owns to the government.

An important part of the story is that a part of the transfer, referred to as Oak Flat, is sacred land for several Native American groups in the region who, along with others, have been organized against the transfer since it was first proposed.  The transfer was long sought by Arizona legislators who were never successful in getting the transfer completed on its own. By attaching the transfer to the 2015 appropriations bill, the transfer became law.

The inclusion of the transfer as a rider on the appropriations act only further motivated resistance that had been organized since the initial proposal of the transfer. Two subsequent bills have been introduced to repeal the transfer. The following describes a bit about how this whole process has worked to date.

Each year, the United States Congress passes an appropriations bill outlining how money collected as taxes will be spent by the government. Put simply, when passed by both the Senate and the House and signed into law by the President, the appropriations bill becomes the law on how the government will spend its money.

The appropriations bill is seen as a “must pass bill”, meaning Senators in the Senate and Representatives in the House generally agree that such a bill must be enacted into law each year. There are exceptions, of course, but when an appropriations bill is not passed before the expiration of the previous appropriations bill, this causes a “government shutdown” that can have negative political consequences for one or both parties.

Because the appropriations bill is “must pass”, legislators often use it as a vehicle to pass laws addressing other issues than federal spending. These other laws are passed by “attaching” them to the appropriations bill as “riders”, bills that “ride” on the main bill being debated and that end up becoming law if the main bill becomes law.

In the 2015 appropriations bill, a rider (Section 3003) was attached that transferred the national forest land to Resolution Mining, a joint venture formed by two multinational mining companies seeking to mine copper ore located beneath the national forest land. Section 3003 is entitled, Southeast Arizona Land Exchange and Conservation. It is too long to quote in its entirety, but it begins with the Section’s purpose:

 PURPOSE.—The purpose of this section is to authorize, direct, facilitate,  and  expedite  the  exchange  of  land  between  Resolution
Copper and the United States.

Section 3003 describes the transfer as:

Subject to the provisions of this section, 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.

Alluding to the organized resistance by Native American and other groups, Section 3003 instructs the Secretary of the Interior to engage in “consultation” with Tribes:

oak-flat

Note how the instructions to the Secretary do not require mutually acceptable measures be agreed upon, but instead only that the Secretary engage in  consultation to “seek” such measures.

As noted above, Arizona’s political representatives have been seeking the transfer for some time. Since the transfer was first created as an idea, groups have been organized against the transfer. Those groups are still engaged, and two recent bills have been introduced seeking to repeal Section 3003, one bill in the House of Representatives (H.R. 2811) and one in the Senate (S. 2242). Both bills are entitled “Save Oak Flat Act” in reference to the Oak Flat area at the heart of opposition to the transfer.

H.R. 2811 describes what the transfer does. Note that the bill seeks to repeal the transfer and thus presents the objectives and impacts in an ideologically-motivated way:

Section 3003 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291) authorizes approximately 2422 acres of Forest Service land known as Oak Flat in the Tonto National Forest in Southeastern Arizona that is sacred to Indian tribes in the region, including the San Carlos Apache Tribe and the Yavapai-Apache Nation, to be transferred to a mining company called Resolution Copper. That company plans to hold the Forest land privately for a mining project that will result in the physical destruction of tribal sacred areas and deprive American Indians from practicing their religions, ceremonies, and other traditional practices. The mining project will also create significant negative environmental impacts by destroying the area and depleting and contaminating precious water resources.

H.R. 2811 also contains a summary of the legislative history that lead to the rider being attached to the appropriations act. Note this summary is ideologically motivated to portray the inclusion of the rider as counter to an idealized democractic process:

Section 3003 was included in the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 without proper legislative process and circumvented the will of the majority of Members of the House of Representatives. Section 3003 was originally introduced in the House of Representatives as H.R. 687 and in the Senate as S. 339 in the 113th Congress. H.R. 687 was brought to the floor of the House of Representatives for consideration twice and was pulled from consideration both times. S. 339 was never considered by the Senate or even considered for mark up by the Senate Committee on Energy and Natural Resources. Section 3003 was then included in the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 without majority support from either the House or Senate and an amendment to remove section 3003 was not allowed to be considered.

Unless these bills become law, the Resolution project will proceed, Resolution Mining will be given 2,422 acres of land containing copper deposits worth potentially billions of dollars, and the government will receive land deemed far less valuable from Resolution Mining. This appears to be a very good deal for Resolution Mining and suggests that long-term engagement with political elites can be highly profitable for business firms.

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