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Qcc latest letter to congress about Oak Flat Land Swap

Curt Shannon · · Unknown Hometown · Joined Jun 2006 · Points: 5

Geir,

In my opinion, there is absolutely no way that climbers could ever come out ahead by endorsing the land exchange, unless of course, RCC would agree to a "no subsidence" mining method and permanent recreational access to Oak Flat would be preserved. There is absolutely nothing else that could possibly be offered to climbers that would adequately compensate us for the permanent loss of the unique climbing resource that we currently enjoy in the Oak Flat Area.

Curt

episteme · · Unknown Hometown · Joined Nov 2006 · Points: 73

Geir,

In my opinion, it is pretty obvious how climbers could come out ahead by endorsing the land exchange. Let’s say, as a wild hypothetical, that either with or without our endorsement, and with or without our steadfast opposition, the land exchange will get done. Let’s also say that we are offered climbing assets A, B and C, contingent upon our endorsement. Then there are two scenarios:

1. We endorse and get A, B and C (but not, obviously, Oak Flat).

2. We refuse to endorse and do not get A, B or C (nor do we get Oak Flat).

Which is better?

Curt appears to be saying that we can’t come out ahead of where we are now by endorsing the exchange. There are scenarios (albeit unlikely) where even that isn’t true: where we make a deal for things we don’t currently have, not contingent on the exchange, then the exchange never happens. But that is not the point. It is meaningless to compare possible future circumstances to what we have now, because it is not in our power to make things stay as they are. At some point, we may well be faced with the choice of either walking away from the table and putting all our hopes in a campaign to stop the exchange, or making a deal with Resolution that to some extent limits our ability to formally oppose the exchange.

What we cannot do is have it both ways. We cannot refuse to consider any agreement that does not include within it a requirement that the surface of Oak Flat remain forever both intact and available for climbing, while secretly being ready to make a different deal if things look like they are not going our way. As the last few days should have made abundantly clear:

1) Resolution will never possess less information than we about which way the political winds are blowing; and

2) The political winds have a way of changing very quickly.

You can say “Oak Flat or die” - clearly there are some who feel that way - but you’d better be prepared to live with the consequences; you won’t have time to reverse course once it becomes clear that, of those two, you will not be getting Oak Flat.

By the way, I personally am not ready to endorse anything. We are in the process of working through a lot of issues. Like Curt, I would prefer not to endorse any agreement or legislation that allows Oak Flat to be destroyed. But I’m not going to tell you that I can’t see any possible upside, under any set of facts, to making such an endorsement.

Rick

episteme · · Unknown Hometown · Joined Nov 2006 · Points: 73

Regarding the withdrawal of Oak Flat:

In 1952, via Executive Order 10355, President Truman delegated the President’s authority to make and rescind land withdrawals to the Department of the Interior. The 1955 order that withdrew Oak Flat was not a Presidential Executive Order; it was a “public land order,” PLO 1229, issued by an assistant Secretary of the Interior.

Oak Flat was one of 24 parcels in the Tonto and Coconino National Forests withdrawn from appropriation by PLO 1229; it was given no special status relative to the other 23 parcels. PLO 1229 has been partially revoked by four subsequent public land orders, nos. 5125, 5132, 7598 and 7627, and some of the 24 parcels have been opened to mining. So if you want an example of previously-withdrawn land being opened to mining, you need look no further than the subsequent history of the very order that withdrew Oak Flat.

Congress superseded EO 10355, eliminated the President’s authority to make such withdrawals (and thus the power to delegate such authority), and established its own procedures for withdrawals, as part of the Federal Land Policy and Management Act of 1976. So if you want an example of an Executive Order being superseded by Congress, you need look no further than the subsequent history of the very order that delegated the power to withdraw Oak Flat.

Absent a showing that the reasons for the withdrawal, whatever they were, trump the present interests of the public in allowing the exchange, the argument that Congress should treat the administrative order withdrawing Oak Flat as inviolable is nothing more than an assertion that Congress should not presume to override the executive branch. That gets the relationship of the two branches backwards. The executive branch enforces the laws; it is the prerogative of the legislative branch to make them.

Congress might, of course, wish to accord some level of deference to an administrative decision that has stood for more than half a century, but it is not bound to do so and the Senate evidently was little troubled by the existence of PLO 1229.

On the other hand, PLO 1229 and PLO 5132 (which partially revoked the withdrawal of Oak Flat but left intact the mining ban) seem to matter to Rep. Grijalva. In April 2008, he asked Resolution's David Salisbury to "Please explain why Resolution Copper feels that these preservation orders should be overturned after all these years." (Salisbury responded in part, "[B]ecause the withdrawal area did not include either Apache Leap or Devil’s [sic] Canyon, it becomes more clear it was simply a routine withdrawal to protect the public’s investment at the 'Oak Flat Picnic and Camp Ground'.”)

Linda White · · maricopa, AZ · Joined Feb 2006 · Points: 100

Good mornin' all...
I just want to add my 2 cents in this moment. I am grateful to see us all coming together to discuss this. Thank you!

Also, I this found interesting. It comes from Earthworks website. Regarding the water pollution through mining.
Thought I'd share: earthworksaction.org/pubs/A…

Thanks for all the detailed info and honesty as of late....

Linda

Geir www.ToofastTopos.com · · Tucson/DMR · Joined Jun 2006 · Points: 2,751

good discussion so far! thanks! i'm headed to the area in question to camp and climb for three days and will respond to all of these when i return. best regards, geir

Fred AmRhein · · Unknown Hometown · Joined Feb 2007 · Points: 512
episteme wrote: . . . and some of the 24 parcels have been opened to mining. So if you want an example of previously-withdrawn land being opened to mining . . .
Rick,

Is it your opinion, given what you know from the details, that there indeed is land specifically withdrawn from appropriation under the mining laws by an Executive Order that has directly been privatized by a specific piece of legislation for the express purpose of mining as is being proposed in the Oak Flat legislation?

If so, can you provide that/those piece(s) of Congressional legislation?

Fred
Mike Covington · · Unknown Hometown · Joined Mar 2007 · Points: 0

I for one will never be able to endorse legislation that destroys climbing. I have always believed that we (climbers) needed to participate in the process. They want our endorsement, we want the climbing(surface)preserved, regardless of the end result, the existance of the two sides really keeps us at the table and we meet somewhere in the middle.

The important point for me is when we need to go through this again, with another mine, under some other cherished climbing, we (climbers) need the ability be able to have a principled stance that can't be "bought" and won't be crossed.

Geir your point is one that has been discussed in length, in the end I think if there is one thing the QCC completely agrees on is that at the end of the day we cannot endorse any leglislation that will destroy climbing.

Linda White · · maricopa, AZ · Joined Feb 2006 · Points: 100

Geir, you had mentioned sending the responses you've received...
Can you do that this week, please?

Thanks!

Hi Shiloh, good to see ya!

Rick~ I was asking specifically for an example where public land that was protected (from mining) by an executive order (such as Oak Flat) was over turned to allow mining.
Do you know of any?

Mike, thanks for posting and clarifying! Good to see ya!

I, myself, have real problem with endorsing the mining. There are way too many issues that this mining will create and effect! I cannot compromise the very ideals that I have fought to defend: climbing, environmental effects, etc. I get concerned that when diving into the details...we loose our focus of the original mission statement. (The devil is in the details.)

Erik~ I think that is what is happening (loosing focus) when considering the 'offer' from RCM. I understand the premise of finding a common ground to work with and 'reach across the isle' (a political ideal), but we have to remember why we even started this fight and not be comprised from fear or swayed by influence.

Once again, thanks all...
Have a fun weekend!

Linda
(sounds like the QC rock will be getting lots of love from us this weekend!!!! YAH!)

Curt Shannon · · Unknown Hometown · Joined Jun 2006 · Points: 5

I can easily see how people may have differing opinions regarding the endorsement of this land exchange. I personally agree with Mike - and will never allow my name to be associated with the endorsement of any land exchange legislation that leads to the eventual destruction of Oak Flat. This is quite obviously my personal view only--and if the QCC position eventually evolves to "endorsement" of the current legislation, I'll simply resign from the QCC Board.

Curt

episteme · · Unknown Hometown · Joined Nov 2006 · Points: 73

Fred,

First of all, I take it you mean by “Executive Order” any administrative order, such as a public land order, not a true Executive Order (big E, big O - numbered orders issued directly by the President). The President has been out of the land withdrawal business since 1952 and we are not here dealing with an Executive Order (though it wouldn’t matter; Congress can override any administrative order, including one made by the President).

I know of at least one land-exchange bill that became law which revoked a previous withdrawal and opened the exchanged Federal land to mining (though enabling mining was not the specific purpose of the bill). I don’t know whether Congress has exchanged a withdrawn Federal parcel for the purpose of enabling mining on the Federal parcel. There is, however, nothing to suggest that withdrawn status, by itself, is an impediment; if you look at the table of public land orders, you can see that withdrawals are revoked frequently. It may not have happened before in exactly this way simply because it’s an unusual situation, for the following reasons: 1) most land exchanges are done administratively (in the period 2004-08, according to the GAO, only eight per cent of the total processed land exchanges, 20 of 250, were initiated by Congress); 2) most exchanged Federal land, I suspect, was not previously withdrawn; 3) most exchanges are not done to facilitate a specific mining objective; and 4) mining on a withdrawn parcel can be facilitated without an exchange by simply removing the withdrawal.

Here’s a question for you (and for the Sierra Club and any other fan of this argument from novelty): Can you name an instance where such a proposed exchange was rejected solely because the Federal land to be exchanged was in withdrawn status? That this aspect of the proposed exchange is unprecedented – if it is - proves nothing.

A better argument, in my view, is that the withdrawal should be maintained on its own merits. Two different administrations in two different eras have concluded that mining should be prohibited at Oak Flat. While there is no record of the reasons for the 1955 withdrawal, or the 1971 decision to maintain it as to mining, we can suggest a likely reason: the parcel is in the middle of a beautiful, high desert area and its prominent location ensures and facilitates continued public enjoyment of the canyon. That the Forest Service has had a tough time coming up with an alternate site is pretty good evidence that this is not only the best available campsite it’s the only decent location for the campsite. We can also say that a major change in the way Oak Flat is used, and corresponding major increase in its recreational value, has made withdrawal and protection more appropriate now than it was when these decisions were made: in the last twenty years, Oak Flat has become the centerpiece of one of the most important climbing areas in Arizona, and comparable climbing (hundreds of welded-tuff boulder problems) is not to be found elsewhere.

Rick

Curt Shannon · · Unknown Hometown · Joined Jun 2006 · Points: 5

Rick,

I think your last paragraph is spot on, regarding the best arguments that can be made regarding the Oak Flat mining withdrawal. In fact, the National Forest Service agrees with you--or, at least they have agreed, historically. When the Access Fund and Friends of Queen Creek filed a FOIA with the Tonto NF people a few years back, we found at least two instances where mining companies had inquired about the possibility of the withdrawal being removed--and both times the NFS replied that the reasons for the withdrawal (recreation and camping) were as valid today as when the withdrawal was first put in place.

Curt

BGBingham · · Unknown Hometown · Joined May 2007 · Points: 60

For further historic perspective and a little off topic, old neighbors of mine (Globe/Miami) use to very fondly relate stories to me of the two day trip to Phoenix in Model T's. Oak Flat was the overnight spot. Lots of parties and gatherings there over many decades.

In the early 1990's I met an old guy at Oak Flat who lived in the campground every winter. He was in his 90's. When I first met him he was hiking out of Devils Canyon and exclaimed that he almost didn't make it "this time".

What a spirit! He'd first come to know Oak Flat in the Great Depression era when he worked there for the WPA. He showed me many things on a few hikes we took. Such as how all the old concrete tables had a north arrow on them that was accurately alligned with true north. Where the Forest Service had dumped all the tables in the 60's or 70's (?) down a trail to Devil's Canyon. Where they'd missed one. He talked about the quality pottery they'd frequently found in the 30's.

He also showed me some metates and mano's he'd found and re-hidden and showed me the in-place metates at The Beach. Thanks to him I explored a lot of the area to the east of the main bouldering areas.

I ran into him every winter until '94 when he didn't show. Such is life.

Brent

Mike Covington · · Unknown Hometown · Joined Mar 2007 · Points: 0

My kids have heard stories of an old man that I would always see out there, that would show me things like that, I didn't remember that they were called metates. Thanks Brent.

karabin museum · · phoenix. AZ · Joined Aug 2009 · Points: 1,670

Brent, I met the old man you are referring to. He actually snuck up on me wearing camo in a side canyon near Lower Devils Canyon. Scared the crap out of me as he sat there laughing. We camped that night in the Phlapper Phest campsite by Binghamland. He was staying there for a month or so. That was around 11 years ago.

Marty

Fred AmRhein · · Unknown Hometown · Joined Feb 2007 · Points: 512

An interesting book about one of the first families to settle in the area at what is now known as Top of the World, just east of Oak Flat is titled "Within Adobe Walls 1877-1973," by Helen Baldock Craig. (Maybe some of you have seen it and read it?)

It contains diary entries of Elizabeth Craig Irion as she and her family moved from Fountain, Colorado to Arizona in 1877 and finally came to rest at that area. They squatted and then homesteaded there and built and lived in the prominent adobe ranch house on the south side of the road. The oak trees around the house were evidently somewhat famous for their high quality cork.

The descriptions of the Native Americans, their conditions, their traditions (acorn gathering in the area), and their transformation over the years is really interesting. Also, there is some minor description about the trail from the Superior area to Top of the World and trails down Devil's Canyon and into Mineral Creek.

It must have been a really wild place back then as it still is in many ways.

Fred

Geir www.ToofastTopos.com · · Tucson/DMR · Joined Jun 2006 · Points: 2,751
Curt Shannon wrote:I can easily see how people may have differing opinions regarding the endorsement of this land exchange. I personally agree with Mike - and will never allow my name to be associated with the endorsement of any land exchange legislation that leads to the eventual destruction of Oak Flat. This is quite obviously my personal view only--and if the QCC position eventually evolves to "endorsement" of the current legislation, I'll simply resign from the QCC Board. Curt
well said, curt. i respect the fact that you and the others that have feel so strongly about these issues. it is a blessing to the community to have such dedicated folks working for us.

it is regrettable that oak flat is situated in the proposed mine area. i would venture to guess that few (if any) local climbers want to see anything bad happen to it. i sure don't.

unfortunately, if we take a position of non-opposition and the land exchange occurs, the end result to oak flat will be the same. if RCM is willing to give us far less than we would get with an endorsement, and we opt to stick with the non-opposition position, we effectively choose to destroy (or at least lose access to) a greater amount of climbing.

as this new round of negotiations continues with RCM, it would be very helpful to know what they think of the non-opposition position. If they are willing to provide nearly the same deal as they would with an endorsement, great! if not, can we re-consider this position?

regards,
geir
Fred AmRhein · · Unknown Hometown · Joined Feb 2007 · Points: 512
episteme wrote:Fred, First of all, I take it you mean by “Executive Order” any administrative order, such as a public land order, not a true Executive Order (big E, big O - numbered orders issued directly by the President). The President has been out of the land withdrawal business since 1952 and we are not here dealing with an Executive Order
Rick,

I only have the document stamp dated "1955 OCT 4 PM 2 30" to go by:

Here's what PLO 1229 says in its title and introduction:

[Public Land Order 1229]

Arizona

"RESERVING LANDS WITHIN NATIONAL FORESTS FOR USE OF THE FOREST SERVICE AS CAMPGROUNDS, RECREATION AREAS, OR FOR OTHER PUBLIC PURPOSES

By virtue of the authority vested in the President by the act of June 4, 1897 (30 Stat. 34, 36; 16 U. S. C. 473) and otherwise, and pursuant to Executive Order No. 10355 of May 26, 1952, it is ordered as follows:

Subject to valid existing rights, the following described public lands within the national forests hereinafter designated are hereby withdrawn from all forms of appropriation under the public land laws, including the mining but not the mineral-leasing laws, and reserved for use of the Forest Service, Department of Agriculture, as camp grounds, recreational areas, or for other public purposes as indicated."

It then lists a long list of various areas including "Oak Flat Picnic and Camp Ground:" with the legal description of the approximately 760 acre parcel.

Do the "big E" and "big O" in this document and that number following, 10355, not mean what you were referring to or is it something different? I'm not the best reader of these things sometimes, so maybe you're better at reading/interpreting and can further explain?

epistme wrote:I know of at least one land-exchange bill that became law which revoked a previous withdrawal and opened the exchanged Federal land to mining (though enabling mining was not the specific purpose of the bill). I don’t know whether Congress has exchanged a withdrawn Federal parcel for the purpose of enabling mining on the Federal parcel.
Can you supply more specific legislation references for this instance (Congressional session, bill ID, etc.)?

Also, perhaps it's the "though enabling mining was not the specific purpose of the bill" part here that some assert is different with the Oak Flat exchange.

The bills introduced on behalf of Resolution Mining, S409 and its sister bill in the House HR2509, specifically reference a mining company as the beneficiary of the exchange and this has evidently never been done before for lands specifically set aside from mining?

Fred
episteme · · Unknown Hometown · Joined Nov 2006 · Points: 73

Fred,

1. Executive Order 10355, as I have said, is the Truman order by which the President’s authority to make land withdrawals was delegated to the Secretary of the Interior. EO 10355 did not address Oak Flat or any other specific parcel. The reference to it in PLO 1229 is in a preamble reciting the authority of the Secretary to issue public land orders. In my view, characterizing PLO 1229 as an “Executive Order” is inaccurate and fosters a false impression that President Eisenhower was personally involved in the decision to withdraw Oak Flat.

You can call a PLO an “executive order” without doing violence to the ordinary meaning of the words, because: 1) it’s an order; and 2) it’s issued by an agency within the executive branch. But doing so invites confusion because “executive order,” as I have explained, is a term of art (and usually capitalized). It would be better to refer to such orders generically as “administrative orders.” Some people don’t want to do that, because they want to pretend that PLO 1229 has equal dignity to any Executive Order, but the reality is that PLO 1229 was a routine administrative order that happened to withdraw one very special parcel.

2. The law I referenced is the Oregon Public Lands Transfer and Protection Act of 1998, Pub. L. 105-321. Of course it is distinguishable from the proposed Oak Flat legislation. I didn’t say that it wasn’t.

3. As I have said, I don’t know whether Congress has exchanged a withdrawn Federal parcel for the purpose of enabling mining on the Federal parcel.

I understand the appeal of the argument that we should not set a precedent for stripping the protection from protected lands based on the perceived exigencies of the moment; that we should take a longer and more responsible view. But not all land locked away needs to be locked away forever. Circumstances change. Not all withdrawn land is as important as, say, a National Park or National Monument. You can believe that some special lands should be protected in perpetuity without believing that every cinder cone or stand of trees withdrawn in the 1950s to serve as a location for a watch tower or storage shed must forever be off limits.

The reasons for withdrawal, the nature of the land and the likely aftermath of a revocation are what matter. That has to be determined on a case-by-case basis. There are good arguments supporting the position that the withdrawal of Oak Flat should not be lifted - not now, not ever - but in my view those arguments are not bolstered in any material way by claiming that a PLO is an “Executive Order” or that Congress should not do such a thing because it never has before (which is just happenstance in the absence of some evidence that Congress has restrained itself from doing so for reasons relevant to this situation).

Rick

Linda White · · maricopa, AZ · Joined Feb 2006 · Points: 100
episteme wrote:We should take a longer and more responsible view. But not all land locked away needs to be locked away forever. Circumstances change. Not all withdrawn land is as important as, say, a National Park or National Monument.
Rick, please clarify your above statement. What do you mean by taking a more responsible view, can you give me an example of what that looks like to you?
I find your statement interesting and though I concur Oak Flat is not Yosemite or the Grand Canyon, I think my reasoning for that is different.

I hope all had a great weekend!
Linda
Dief · · Unknown Hometown · Joined Sep 2007 · Points: 0

I am pragmatic. For example: some folks make a big deal that RCC is a “foreign owned” corporation. Would it make a difference if they were locally owned? I think not. Therefore it is not an argument to be made in this issue. With regards to the Executive Order and Oak Flat Campground that has been much discussed. It does not matter that it is “unfair” or “unethical” that the legislation will overturn this order. The fact is that Congress can do it. On the national level there is no angst about overturning the order so it is a waste of time to spend any effort on it.

The truth is RCC is the major landowner in the area of Oak Flat. We have to work with them. That is a basic fact. Climbers have access to Atlantis and the Pond because a license agreement with RCC was negotiated (with much help from the Access Fund). We had to pay $2000 a year for insurance for the first couple of years but we eventually convinced RCC to drop this requirement.

We live in a world governed by economics. Like it or not that is just the way it is. I learned to climb at the Carefree Boulder Pile in 1975. It was privately owned and we lost access to it when the Boulders Resort was developed. Pinnacle Peak was a mix of state trust land and private land. We lost access to the private land (Lower East Wall) but retained access to most of the climbing on the state trust land when it was sold to a developer. An agreement was reached so the developer would transfer 180 acres to Scottsdale of the 640 acres purchased from the state. Even with this agreement the park was 6 years late in being turned over to Scottsdale. As part of the deal climbers gave up access to Cactus Flower West. We retained access to the main peak, Y-crack boulder and Cactus Flower East. It would have been nice to get the entire 640 acres preserved but the economics didn’t work out. As a pragmatist I would prefer to get something rather than squat. I also understand that no matter what deal is made climbers will have to be vigilant and stay on top of this issue. Our kids and their kids will be working on access issues in this area for decades. That is just the way it is.

The point I am making is that unless climbers can afford to purchase climbing areas outright deals have to be made. The copper below Oak Flat is a huge economic tsunami. If we ignore this basic fact we will get screwed. As I see it the passage of the bill by the senate is like the water at the beach receding away from the beach farther than it has even done. We can jump up and down on the beach all we want and complain about the unfairness of having our beach from home (Oak Flat) destroyed but that will do nothing to stop the huge incoming wave (the eventual approval of the trade by Congress). We cannot stop this trade! Period. There is just too much economic gain to be had. The only choice we have is a) fight the mine and lose or b) make the best deal we can to save as much climbing as we can. As you might guess I prefer the “save as much as we can” option. I learned to climb in 1975. Climbing is my life. I will continue to work to save as much as possible. And that is just the way it is.

Guideline #1: Don't be a jerk.

Arizona & New Mexico
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