[Congressional Record Volume 145, Number 40 (Monday, March 15, 1999)]
[Senate]
[Pages S2651-S2652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NICKLES (for himself, Mr. Hatch, Mr. Mack, and Mrs. 
        Feinstein):
  S. 606. A bill for the relief of Global Exploration and Development 
Corporation, Kerr-McGee Corporation, and Kerr-McGee Chemical, LLC 
(successor to Kerr-McGee Chemical Corporation), and for other purposes; 
to the Committee on the Judiciary.


                          private relief bill

  Mr. NICKLES. Mr. President, today I introduce S. 606 for Senator 
Mack, Senator Feinstein, Senator Hatch, and myself. This bill is 
intended to resolve litigation between the federal government and Kerr-
McGee Corporation and Kerr-McGee Chemical, LLC (successor to Kerr-McGee 
Chemical Corporation) and Global Exploration and Development 
Corporation. This legislation embodies an agreement that has been 
reviewed and accepted by the Hearing Officer and a three judge 
reviewing panel. The Department of Justice has no objection to this 
legislation. In addition, this legislation would also make it a 
criminal act to distribute certain information relating to explosives, 
destructive devices, and weapons of mass destruction. This bill was 
reported by the Committee on the Judiciary in this form during the 
105th Congress.
  As background to this relief for Kerr-McGee and Global Exploration, 
in 1964, they first filed applications for phosphate prospecting 
permits in Osceola National Forest. Under Sec. 211(a) of the Mineral 
Lands Leasing Act, the Secretary can only grant prospecting permit 
applications following a determination that the public interest will be 
served by doing so. The U.S. Forest Service must also consent to the 
issuance of the prospecting permits. The permits were granted, and the 
plaintiffs subsequently discovered phosphate deposits.
  The plaintiffs then filed applications with the Department of 
Interior for leases to mine the deposits in January of 1969. Whether 
the plaintiffs are entitled to leases is governed by the Mineral Lands 
Leasing Act (30 U.S.C. sec. 181 et. seq.) which requires the Secretary 
of Interior to issue leases to a permittee that has discovered a 
``valuable deposit'' of mineral. The U.S. Geological Survey, the Bureau 
of Mines and the Office of Minerals Policy Department all confirmed 
that valuable deposits had in fact been discovered (valued at $100 to 
$300 million in 1970's dollars).
  Kerr-McGee filed suit in 1973 and Global filed suit in 1978 seeking 
the immediate issuance of the leases. In 1981, the U.S. Forest Service 
began setting out the requirements for reclamation. The Department of 
Interior concluded the reclamation technology did not exist based on an 
Environmental Assessment (``EA'') prepared by Interior and issued in 
January of 1983. Based on that conclusion, the plaintiffs' applications 
for leases to mine the deposits were rejected.
  Agency personnel had told plaintiffs that they would be able to 
comment on the EA findings before their final issuance. By law, the 
government was required to permit the applicants to participate in the 
EA process by submitting comments and expert analysis on the 
feasibility of reclamation. Plaintiffs were never given a chance to 
participate in the EA process, to show feasibility of reclamation, or 
to comment on the draft EA.

  In 1984, the Florida Wilderness Act (Pub. L. 98-430, 98 Stat. 1665) 
was enacted which prevented the issuance of phosphate mining leases in 
Osceola, effectively foreclosing a legal remedy since plaintiffs could 
no longer ask for reversal of the prior decision or for relief for 
damages incurred. The House Committee Report accompanying the Act 
stated that ``in the event the courts ultimately determined that 
applicants have established lease rights, [the Act] provides that 
leases will not be issued. The applicants would instead be compensated 
as required in accordance with constitutional principles.'' H. Rpt. 98-
102 Part I, 97th Cong., 1st Sess., at 7.
  The plaintiffs pursued their case in federal district court and the 
Court of Appeals for the D.C. Circuit. The Court of Appeals vacated the 
district court's judgment and remanded the case with instructions to 
dismiss the suit as moot in light of Florida Wilderness Act. The U.S. 
Court of Federal Claims then questioned whether or not it had 
jurisdiction to hear the case, leaving plaintiffs without a forum to be 
heard.
  Under 28 U.S.C. 2509, a congressional reference empowers a judge of 
the Court of Federal Claims to sit as a Hearing Officer, hold a hearing 
and determine the facts of the case. The Hearing Officer's findings and 
conclusions are then reviewed by a three-judge panel. The panel then 
adopts or modifies the findings and conclusions and submits its report 
to the Chief Judge who then transmits the recommendations to the house 
of Congress which referred the case.
  On Jan. 10, 1991, H. Res. 29 and H.R. 477 were introduced during the 
102nd Congress to refer the case to the U.S. Court of Federal Claims in 
order to compensate plaintiffs for any damages incurred on account of 
the failure of the Secretary of the Interior to grant and permit mining 
operations pursuant to phosphate leases in the Osceola National Forest. 
On July 10, 1991, the House Judiciary Subcommittee on Administrative 
Law and Government Relations held hearings on H.R. 477 and H. Res. 29. 
On October 3, 1991, the Subcommittee reported the resolution, with a 
technical amendment, to full Committee. On July 21, 1992, the House of 
Representatives passed H. Res. 29, referring H.R. 477 to Court of 
Claims. The formal Congressional reference confirmed jurisdiction for 
the plaintiffs' suit in the U.S. Court of Federal Claims.
  In the Court of Federal Claims, the Government moved for summary 
judgement. The Court ruled that plaintiffs did not have a legal claim 
but did have an equitable claim since the government failed to comply 
with the legal requirement of the EA. The court ruled that the 
Secretary of Interior had made an error in denying phosphate mining 
leases on the basis of an EA without allowing plaintiffs the 
opportunity to comment. The court concluded that the error was not 
harmless.
  Remaining was the question of fact whether reclamation was feasible, 
according to Forest Service standards as of January of 1983. A 6 week 
evidentiary hearing was held on that issue from October 13 to December 
14, 1995. Plaintiffs presented leading experts in reclamation who 
showed they could have successfully reclaimed the land, that the 
analysis in the EA was scientifically incorrect, and that EA members 
who concluded successful reclamation had their conclusions omitted.
  Before the court issued its opinion, the parties agreed to a joint 
stipulation of settlement and submitted this stipulation to the Court: 
Global is to received $9.5 million; Kerr-McGee is to receive $10 
million, which it will return to the government as partial payment for 
a Superfund cleanup site in Louisiana; and Kerr-McGee Chemical LLC is 
to receive $0. Global, Kerr-McGee and the Department of Justice 
accepted the report of the Hearing Officer, dated November 18, 1996, 
and the Review Panel endorsed the decision.
  On November 18, 1996, the court published its recommendations to 
Congress that the disputes be settled for the amounts set forth in the 
joint stipulation of settlement. The court's recommendation was based 
on a finding that the settlement was fair, just, equitable and 
supported by the evidence. As noted in the Hearing Officer's report, 
``if the case were to proceed to final disposition and plaintiffs to 
prevail, then the Government would face a potential liability 
substantially in excess of the proposed settlement amounts. Conversely, 
however, a victory for the Government would not assure it of protection 
against all future liability.''

[[Page S2652]]

  This legislation would implement this settlement, and we urge its 
prompt consideration and approval by the Senate.
  For the information of all Senators, I have included the House 
Committee Report from the 105th Congress which provides a very clear 
background and the need for this provision.
  In addition, the bill includes language related to the prohibition of 
distribution of information related to destructive devices, explosives, 
and weapons of mass destruction in furtherance of a violent crime. This 
language was added to this legislation during markup of H.R. 1211 
during the 105th Congress in the Senate Judiciary Committee by Senator 
Feinstein  and is a reasonable resolution of an issue pushed by Senator 
Feinstein for several years.
  I urge quick consideration and passage of this overdue and important 
legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 606

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SATISFACTION OF CLAIMS AGAINST THE UNITED STATES.

       (a) Payment of Claims.--The Secretary of the Treasury shall 
     pay, out of money not otherwise appropriated--
       (1) to the Global Exploration and Development Corporation, 
     a Florida corporation incorporated in Delaware, $9,500,000;
       (2) to Kerr-McGee Corporation, an Oklahoma corporation 
     incorporated in Delaware, $10,000,000; and
       (3) to Kerr-McGee Chemical, LLC, a limited liability 
     company organized under the laws of Delaware, $0.
       (b) Condition of Payment.--
       (1) Global exploration and development corporation.--The 
     payment authorized by subsection (a)(1) is in settlement and 
     compromise of all claims of Global Exploration and 
     Development Corporation, as described in the recommendations 
     of the United States Court of Federal Claims set forth in 36 
     Fed. Cl. 776.
       (2) Kerr-mcgee corporation and kerr-mcgee chemical, llc.--
     The payment authorized by subsections (a)(2) and (a)(3) are 
     in settlement and compromise of all claims of Kerr-McGee 
     Corporation and Kerr-McGee Chemical, LLC, as described in the 
     recommendations of the United States Court of Federal Claims 
     set forth in 36 Fed. Cl. 776.

     SEC. 2. CRIMINAL PROHIBITION ON THE DISTRIBUTION OF CERTAIN 
                   INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE 
                   DEVICES, AND WEAPONS OF MASS DESTRUCTION.

       (a) Unlawful Conduct.--Section 842 of title 18, United 
     States Code, is amended by adding at the end the following:
       ``(p) Distribution of Information Relating to Explosives, 
     Destructive Devices, and Weapons of Mass Destruction.--
       ``(1) Definitions.--In this subsection--
       ``(A) the term `destructive device' has the same meaning as 
     in section 921(a)(4);
       ``(B) the term `explosive' has the same meaning as in 
     section 844(j); and
       ``(C) the term `weapon of mass destruction' has the same 
     meaning as in section 2332a(c)(2).
       ``(2) Prohibition.--It shall be unlawful for any person--
       ``(A) to teach or demonstrate the making or use of an 
     explosive, a destructive device, or a weapon of mass 
     destruction, or to distribute by any means information 
     pertaining to, in whole or in part, the manufacture or use of 
     an explosive, destructive device, or weapon of mass 
     destruction, with the intent that the teaching, 
     demonstration, or information be used for, or in furtherance 
     of, an activity that constitutes a Federal crime of violence; 
     or
       ``(B) to teach or demonstrate to any person the making or 
     use of an explosive, a destructive device, or a weapon of 
     mass destruction, or to distribute to any person, by any 
     means, information pertaining to, in whole or in part, the 
     manufacture or use of an explosive, destructive device, or 
     weapon of mass destruction, knowing that such person intends 
     to use the teaching, demonstration, or information for, or in 
     furtherance of, an activity that constitutes a Federal crime 
     of violence.''.
       (b) Penalties.--Section 844 of title 18, United States 
     Code, is amended--
       (1) in subsection (a), by striking ``person who violates 
     any of subsections'' and inserting the following: ``person 
     who--
       ``(1) violates any of subsections'';
       (2) by striking the period at the end and inserting ``; 
     and''; and
       (3) by adding at the end the following:
       ``(2) violates subsection (p)(2) of section 842, shall be 
     fined under this title, imprisoned not more than 20 years, or 
     both.''; and
       (4) in subsection (j), by striking ``and (i)'' and 
     inserting ``(i), and (p)''.
                                 ______