The Advisory Council on Historic Preservation (ACHP) oversees a key federal environmental review created by the National Historic Preservation Act (NHPA) of 1966. Known as Section 106 review, it ensures federal agencies consider impacts to historic properties during the development of federal or federally-assisted projects.

In 2015, the National Defense Authorization Act (NDAA) mandated transfer of Oak Flat out of federal ownership. This Act was passed by Congress and signed into law by President Obama. As the agency required by law to transfer the property, the U.S. Forest Service (USFS) is responsible for carrying out the Section 106 review and consultation regarding the proposed Resolution Copper Project and Southeast Arizona Land Exchange. Because the statute requires specific actions be taken, the parties to the Section 106 review were not able to consider an alternative that would avoid all adverse effects to historic properties. Neither the USFS nor the ACHP is able to disapprove the transfer.

The ACHP has participated in this Section 106 consultation since 2017. Recognizing that neither the NHPA or the NDAA authorizes the ACHP to stop this undertaking, the ACHP’s participation in this consultation has been focused on giving advice to the USFS on steps it could take to comply with, to the extent possible within the confines of the NDAA, the regulations at 36CFR Part 800 to avoid, minimize, and mitigate harm to historic properties that result from both the legislated exchange and the proposed mining project, and specifically harm to those historic properties of religious and cultural significance to Indian tribes.

Current Status

March 4, 2021 ACHP Press Release

On March 1, 2021, the United States Department of Agriculture directed Tonto National Forest to withdraw the Notice of Availability and rescind the Final Environmental Impact Statement (FEIS) and draft Record of Decision (ROD) for the Resolution Copper Mining Project and Land Exchange. This step was taken in response to input received from multiple parties and the public and allows the FS to conduct additional consultation with Indian tribes and evaluate its required environmental, cultural, and archaeological analyses for the project.

FS representatives have advised the ACHP that the decision to withdraw the FEIS halted the transfer of the land for this project required by the NDAA following the publication of the FEIS. In response to this information, the ACHP has informed the USFS that because the land will not be transferred next week, the ACHP intends to avail itself of the 45-day time limit provided in the Section 106 implementing regulations to issue its comments to the Secretary no later than March 29, 2021.

On February 11, 2021, the ACHP invited the public to submit comments on its decision to terminate consultation.  At the close of the public comment period on February 26, 2021, the ACHP had received more than 500 comments regarding the proposed undertaking and its potential effects to historic properties from consulting parties and members of the public. These comments will be considered by the ACHP prior to the finalization and transmittal of its formal comments to the Secretary.

Consultation Background

The Advisory Council on Historic Preservation (ACHP) oversees a key federal environmental review created by the National Historic Preservation Act (NHPA) of 1966. Known as Section 106, this review requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve. Through consultation among project sponsors, Indian tribes, historic preservation entities, and impacted stakeholders, the review process encourages—but does not mandate—preservation outcomes.

In 2014, the National Defense Authorization Act (NDAA) mandated transfer of Oak Flat out of federal ownership. This Act was passed by Congress and signed into law by President Obama. The land exchange would facilitate a copper mine project proposed by Resolution Copper. As the agency required by law to transfer the property, the U.S. Forest Service (USFS) is responsible for carrying out the Section 106 review and consultation regarding the proposed Resolution Copper Project and Southeast Arizona Land Exchange. Because the statute requires specific actions be taken, the parties to the Section 106 review were not able to consider an alternative that would avoid all adverse effects to historic properties. Neither the USFS nor the ACHP is able to disapprove the transfer.

The ACHP has participated in this Section 106 consultation since 2017. Recognizing that neither the NHPA or the NDAA authorizes the ACHP to stop this undertaking, the ACHP’s participation in this consultation has been focused on giving advice to the USFS on steps it could take to comply with the regulations at 36 CFR Part 800 to consider ways to avoid, minimize, or mitigate harm to historic properties that would result from both the legislated exchange and the proposed mining project, and specifically harm to those historic properties of religious and cultural significance to Indian tribes.

The ACHP recognizes the impact of the project to historic properties of critical importance to Indian tribes and others. Through its participation in this consultation, the ACHP has worked with the USFS and other consulting parties to review the effects of this project under Section 106 and worked to include in the draft Programmatic Agreement (PA) steps to resolve adverse effects to historic properties to the extent possible. In the end, Congress has directed that the transfer occur.

Consultation Timeline

On December 15, 2020, the ACHP provided recommendations to USFS on how to move the consultation process under Section 106 forward. On December 23, 2020, the USFS responded to those recommendations and subsequently released a final PA and indicated its intent to move forward with its execution in the next few weeks.

While the ACHP would be the final required signatory to this Section 106 agreement, the ACHP’s signature would not constitute approval of the transfer; rather, it would acknowledge the USFS’ compliance with Section 106 of the NHPA through execution of the PA. On January 8, 2021, in order to inform our decision on whether to sign the proposed PA, the ACHP requested the USFS provide additional clarification on several items.

On January 15, 2021, the USFS released the FEIS as part of its compliance with the National Environmental Policy Act. Included in the USFS’ FEIS document was an unsigned version of the final PA. At that time, the USFS has obtained signatures on the PA from all signatories and invited signatories with the exception of the ACHP, which was awaiting the USFS response to its most recent letter as well as evaluating feedback from consulting parties and the public. The issuance of the FEIS triggered the statutory provision from the NDAA that required the USFS to execute the transfer within 60 days. The FEIS began 45-day objection period for people who had previously submitted specific comments regarding the proposed project before the USFS issues a final record of decision.

On January 26, 2021, the USFS responded to the ACHP’s January 8 letter, which sought clarification regarding several items related to the consultation process and the PA. The USFS response included correspondence from the USFS Regional Forester regarding long-range items that ACHP recommended as part of our December 2020 letter. The same day, the USFS provided a copy of the final PA for the ACHP’s signature and execution. All other Signatories (USFS, SHPO) and Invited Signatories (BLM, USACE, Resolution Copper, Salt River Project, Arizona State Land Department, & Arizona State Museum) had signed the agreement. 

On February 11, 2021, the ACHP notified the USFS of its decision to terminate Section 106 consultation. The ACHP will now move to develop its final advisory comments on this undertaking and proposed resolution of adverse effects on historic properties, which will be provided to the Secretary of Agriculture. Upon receipt of the ACHP’s comments, the Secretary must respond to them prior to reaching a final decision on the undertaking to conclude the Section 106 review. On February 11, 2021, the ACHP issued a Press Release describing the termination process and where the public can provide comments.

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