The Need for a Better Toolbox for Protecting Cultural Resources on Federal Lands

By: Walter Rusinek | Senior Counsel | walter.rusinek@procopio.com

Two large copper mines proposed on federal lands in Arizona–the Oak Flat Mine near Superior and the Rosemont Mine south of Tucson–are being challenged because of the impacts the projects would have on Native American sacred and cultural sites. The Oak Flat area had first been set aside for protection in 1955 by President Eisenhower, and the Rosemont Mine is located in the Coronado National Forest.

After failing for years to get access to the Oak Flat site, two large, foreign mining companies were successful in getting a last-minute rider added to a defense bill by Arizona Senators McCain and Flake. The bill, passed in December of 2014, approved a 2,422-acre land exchange between the federal government and the mining companies that included the Oak Flat area where the mining would occur. The federal government would receive about 4,300 acres of land in return.

In response, hundreds of members of the San Carlos Apache Tribe marched 44 miles and camped out in protest at the Oak Flat site for more than three months. Hundreds then gathered in Washington DC in July to support legislation to repeal the land swap. Companion legislation to repeal the land swap was recently introduced in the Senate by Presidential candidate Bernie Sanders. Both bills cite the area’s significant religious and cultural value to Apaches, Yavapais and other Native Americans.

Proponents of the swap and the proposed mine claim that the land exchange had bipartisan support, that the project would create 3,700 jobs, and would generate more than $60 billion in economic benefits and almost $20 billion in state and federal taxes. They also claim that the bill authorizing the land swap contains provisions to protect culturally important locations like Apache Leap and Oak Flat through consultations with Arizona tribes as part of the exchange for impacts to other sites. Proponents claim that a majority of members of the San Carlos Apache Tribe actually support the land exchange and project. But is such a sacrifice required in order to gain partial protection of culturally important areas?

The Rosemont Copper Mine, although a much smaller-sized mine, also would have significant environmental impacts, and would destroy sites considered sacred and culturally significant by the Tohono O’odham Nation, and the Pascua Yaqui and other Tribes. The Chairman of the Tohono O’odham Nation has stated that the mine will irrevocably alter the cultural landscape of the Santa Rita Mountains. Not one of the 12 Tribes consulting under Section 106 of the National Historic Preservation Act has agreed to sign a Memorandum of Agreement agreeing to the project moving forward.

The U.S. EPA also has criticized the mine, Pima County has challenged the project water quality certification, and an Arizona court has ordered that a state air quality permit previously issued for the project be rescinded. The project also needs major approvals from the Army Corps of Engineers and the US Forest Service. But federal law liberally allows mining on federal lands, even in places that are environmentally sensitive and culturally significant. No specific legislation has been introduced to stop this project.

These two projects highlight the problems Native Americans face in trying to protect their sacred and culturally important sites. They simply do not have adequate legal tools to effectuate avoidance of impacts or changes to projects that impact cultural resources. Absent specific legislation, Tribes are left just with the Section 106 consultation process as the sole tool in hope of “consulting” with project proponents to encourage cultural preservation into projects such as these. But completion of that “process” does not ensure that Native American opposition to a project on those grounds will result in project disapproval or even changes to the project. Without tools stronger than merge “consultation,” it remains unclear whether existing legal protections provide any protection at all. If the federal government is serious about preserving the indigenous history of this land, it needs to develop more meaningful tools for cultural resource protection to place the value of cultural heritage at least as high as resource exploitation.

rusinek-2013-241Walter is Senior Counsel with Procopio and a member of the firm’s Native American Law, and Environmental and Land Use practice groups.

 

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.