[Senate Report 108-319]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 675
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-319

======================================================================



 
                         BIG HORN BENTONITE ACT

                                _______
                                

                August 25, 2004.--Ordered to be printed

   Filed, under authority of the order of the Senate of July 22, 2004

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 203]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 203) to open certain withdrawn land in 
Big Horn County, Wyoming, to locatable mineral development for 
bentonite mining, having considered the same, reports favorably 
thereon with an amendment and an amendment to the title and 
recommends that the bill, as amended, do pass.
    The amendments are as follows:
    1. Strike out all after the enacting clause and insert in 
lieu thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Big Horn Bentonite Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Covered land.--The term ``covered land'' means the 
        approximately 20 acres of previously withdrawn land located in 
        the E\1/2\ NE\1/4\ SE\1/4\ of sec. 32, T. 56N., R. 95W., sixth 
        principal meridian, Big Horn County, Wyoming.
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.

SEC. 3. AUTHORIZATION OF MINING AND REMOVAL OF BENTONITE.

  (a) In General.--Notwithstanding the withdrawal of the covered land 
for military purposes, the Secretary may, with the consent of the 
Secretary of the Army, permit the mining and removal of bentonite on 
the covered land.
  (b) Sole-Source Contract.--The Secretary shall enter into a sole-
source contract for the mining and removal of the bentonite from the 
covered land that provides for the payment to the Secretary of $1.00 
per ton of bentonite removed from the covered land.
  (c) Terms and Conditions.--
          (1) In general.--Mining and removal of bentonite under this 
        Act shall be subject to such terms and conditions as the 
        Secretary may prescribe for--
                  (A) the prevention of unnecessary or undue 
                degradation of the covered land; and
                  (B) the reclamation of the covered land after the 
                bentonite is removed.
          (2) Requirements.--The terms and conditions prescribed under 
        paragraph (1) shall be at least as protective of the covered 
        land as the terms and conditions established for Pit No. 144L 
        (BLM Case File WYW136110).
          (3) Land use plan.--In carrying out the provisions of this 
        Act, the Secretary is not required to amend any land use plan 
        under section 202 of the Federal Land Policy and Management Act 
        of 1976 (43 U.S.C. 1712).
          (4) Termination of interest.--On completion of the mining and 
        reclamation authorized under this Act, any party that has 
        entered into the sole-source contract with the Secretary under 
        subsection (b) shall have no remaining interest in the covered 
        land.

SEC. 4. CLOSURE.

  (a) In General.--If the Secretary of the Army notifies the Secretary 
that closure of the covered land is required because of a national 
emergency or for the purpose of national defense or national security, 
the Secretary shall--
          (1) order the suspension of any activity authorized by this 
        Act on the covered land; and
          (2) close the covered land until the Secretary of the Army 
        notifies the Secretary that the closure is no longer necessary.
  (b) Liability.--Neither the Secretary nor the Secretary of the Army 
shall be liable for damages from a closure of the covered land under 
subsection (a).
  2. Amend the title so as to read: ``A bill to provide for the 
sale of bentonite in Big Horn County, Wyoming.''.

                         PURPOSE OF THE MEASURE

    The purpose of S. 203 is to provide for the sale of 
bentonite on military lands in Big Horn County, Wyoming.

                          BACKGROUND AND NEED

    Bentonite is currently being mined on public lands in Big 
Horn County, Wyoming, on the north and south sides of military 
lands that were withdrawn from military purposes by Executive 
Order 7491, dated November 14, 1936. These lands were withdrawn 
from settlement, location, sale or entry and reserved for use 
by the War Department. The lands remain withdrawn and reserved 
under the jurisdiction of the Secretary of the Army for use as 
a target range. They are currently used by the Wyoming National 
Guard.
    Providing authority to mine bentonite on a specified 
portion of these withdrawn lands will avoid the bypass of the 
mineral and enable the mining operation to follow the natural 
sequence for mining. The Wyoming National Guard does not object 
to the mining of bentonite on the specified lands at this time, 
and has indicated the mining operations will not inhibit 
military training.

                          LEGISLATIVE HISTORY

    S. 203 was introduced by Senator Enzi on January 22, 2003. 
The Subcommittee on Public Lands and Forests held a hearing on 
the bill on February 27, 2003. At the business meeting on July 
14, 2004, the Committee on Energy and Natural Resources ordered 
S. 203, as amended, favorably reported.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on July 14, 2004, by a unanimous vote of a 
quorum present, recommends that the Senate pass S. 203, if 
amended as described herein.

                          COMMITTEE AMENDMENTS

    During the consideration of S. 203, the Committee adopted 
an amendment in the nature of a substitute and an amendment to 
the title. The substitute authorizes the Secretary, with the 
consent of the Secretary of the Army, to permit the mining and 
removal of bentonite on covered land. The substitute directs 
the Secretary of the Interior to negotiate a sole source 
contract for the mining and sale of bentonite from a portion of 
the military lands that adjoins the public lands on which 
bentonite is currently being mined. The amendment also makes 
the land subject to closure in the event of national emergency 
or for the purpose of national defense or security. The bill 
establishes a price of $1 per ton and stipulates terms and 
conditions for mining and reclamation.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 contains the short title.
    Section 2 provides definition used in the bill.
    Section 3(a) authorizes the Secretary of the Interior, with 
the consent of the Secretary of the Army, to permit the mining 
and removal of bentonite on the covered land.
    Subsection (b) directs the Secretary of the Interior to 
enter into a sole source contract for the mining removal of the 
bentonite that provides for the payment of $1.00 per ton of 
bentonite removed.
    Subsection (c) sets forth requirements relating to the 
terms and conditions applicable to the mining and removal of 
bentonite from the covered land. It provides that in carrying 
out this Act, the Secretary is not required to amend any land 
use plan under section 202 of the Federal Land Policy and 
Management Act of 1976. The subsection also provides that upon 
completion of mining and reclamation under this Act, the party 
entering into the sole source contract with the Secretary shall 
have no remaining interest in the covered land.
    Section 4(a) directs the Secretary of the Interior to 
suspend any mining activity and close the covered land if the 
Secretary of the Army requires the land for the purpose of 
national defense or security.
    Subsection 4(b) addresses liability.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 19, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 203, the Big Horn 
Bentonite Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                      Elizabeth M. Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 203--Big Horn Bentonite Act

    CBO estimates that S. 203 would not significantly affect 
the federal budget. Enacting the bill could increase offsetting 
receipts (a credit against direct spending), but by less than 
$5,000. The bill would not affect revenues. S. 203 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    S. 203 would open 20 acres of federal land in Big Horn 
County, Wyoming, to bentonite mining. (Under current law, that 
land is closed to all mineral development.) Under the bill, the 
federal government would receive $1 for each ton of bentonite 
removed from the affected land. Based on information from the 
Bureau of Land Management about the amount of bentonite located 
within the affected land, CBO estimates that, over the next 
several years, S. 203 would generate a total of less than 
$5,000 in offsetting receipts. We also estimate that any 
increase in administrative costs to the agency would be 
minimal.
    The CBO staff contact for this estimate is Megan Carroll. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 203. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 203, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    On, February 25, 2003, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth Executive agency recommendations on S. 203. These reports 
had not been received at the time the report on S. 203 was 
filed. When the reports become available, the Chairman will 
request that they be printed in the Congressional Record for 
the advice of the Senate. The testimony provided by the Bureau 
of Land Management at the Subcommittee hearing follows:

  Statement of Jim Hughes, Deputy Director, Bureau of Land Management

    Mr. Chairman, and members of the Subcommittee, thank you 
for the opportunity to appear here today to discuss S. 203, a 
bill to open certain withdrawn lands in Big Horn County, 
Wyoming, to locatable mineral development for bentonite mining. 
The Department of the Interior generally supports the intent of 
S. 203, but has some concerns about how the bill would be 
implemented.
    Executive Order 7491 of November 14, 1936, withdrew over 
3,500 acres of public land in Big Horn County, Wyoming, from 
settlement, location, sale or entry, and reserved the lands for 
use by the War Department as a target range. These lands remain 
withdrawn and reserved under the jurisdiction of the Secretary 
of the Army for target range purposes, and are currently used 
by the Wyoming Army National Guard. The most recent review and 
rejustification of this withdrawal occurred in May 1984 and 
concluded that mining operations could not be allowed in the 
area because of the concerns with small arms training. S. 203 
would open approximately 40 acres of this withdrawn land for 
bentonite mining.
    The BLM has no objection to the mining of bentonite on this 
parcel, however, the BLM is concerned about some ambiguity in 
S. 203, in its current form. As written, it is not clear 
whether the lands will be opened to bentonite location under 
the 1872 Mining Law, which would require BLM to record and 
regulate the location of the claims. Secondly, it is unclear 
whether the actual mining of the bentonite will be managed by 
the Secretary of the Army or the BLM as the bill does not 
appear to return the lands to the public domain by revoking the 
withdrawal. We would also prefer to draw a more narrow 
exception for this parcel than the broad sufficiency language 
the bill currently provides.
    Bentonite may either be a ``locatable mineral'' under the 
1872 Mining Law or valued as a ``common variety mineral'' and 
salable under the Materials Act of 1947. The Department of the 
Interior recommends that language in S. 203 be modified to 
direct the BLM to use the authority of the Materials Act of 
1947 to allow for a competitive sale of the bentonite on this 
parcel. The BLM currently has the authority to sell common 
variety bentonite off the parcel with the consent of the 
Department of Army, and subject to their operations. It is our 
understanding, however, that the bentonite on this 40 acre 
parcel may be of a locatable nature. Location and discovery of 
a valuable mineral under the 1872 Mining Law allows the 
claimant the right to apply for patent for the lands. While 
there remains in force a legislative moratorium on the issue of 
patents for surface lands, a locatable claim could create a 
future property interest in minerals that could conflict with 
the Department of Army's ability to use the land. Therefore, we 
could not support this bill if it allows the minerals on the 
site to be mined in a way that would complicate any future 
military use of the land.
    Should the withdrawal be modified or revoked, and the lands 
placed under BLM management by this bill, it is important that 
an examination of the use of the proposed withdrawn lands be 
completed before a decision can be made to open them to 
bentonite mining. Without additional statutory direction, if 
the proposed use is acceptable, an amendment to the existing 
resource management plan would need to be completed and the 40 
acres of withdrawn lands placed back into the public domain. 
Subject to any existing 1872 Mining Law claims, the BLM might 
need to complete a process of opening the land in an equitable 
manner to all claimants.
    Mr. Chairman, the Department looks forward to working with 
the Committee on this bill. Thank you for the opportunity to 
testify before you today. I would be pleased to answer any 
questions that you or the other members may have.
                                ------                                

         Departments of the Army and the Air Force,
                                     national guard bureau,
                                     Arlington, VA, March 24, 2003.
Hon. Pete V. Domenici,
U.S. Senate, Dirksen Senate Office Building,
Washington, DC.
    Dear Senator Domenici: Thank you for your recent letter to 
Major General Fred Rees, Acting Chief of the National Guard 
Bureau, regarding Senate Bill 203 (opening of certain withdrawn 
land in Wyoming to locatable mineral development for bentonite 
mining).
    The National Guard Bureau contacted The Adjutant General, 
Wyoming, regarding your request on behalf of the Senate 
Committee on Energy and Natural Resources. The Wyoming National 
Guard has no objection to Senate Bill 203. In fact they have a 
good relationship with the company involved and the opening of 
the land as stated in the Bill will not inhibit military 
training in Wyoming.
    Again thank you for your letter, if I can be of any further 
assistance, please do not hesitate to contact me.
            Very Respectfully,
                                    Kelly McKeague,
                                   Colonel, U.S. Air Force,
                               Chief, Office of Policy and Liaison.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 203, as ordered 
reported.