[Senate Report 109-37]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 52
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-37
======================================================================


 
                         BIG HORN BENTONITE ACT

                                _______
                                

                 March 14, 2005.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                          [To accompany S. 97]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 97) to provide for the sale of bentonite 
in Big Horn County, Wyoming, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                         PURPOSE OF THE MEASURE

    The purpose of S. 97 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lands that were withdrawn for military purposes by Executive 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 These lands were withdrawn 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 The lands remain withdrawn and reserved 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portion of these withdrawn lands will avoid the bypass of the 
Federal mineral and the opportunity 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. 97 was introduced by Senator Enzi on January 24, 2005. 
At the business meeting on February 16, 2005, the Committee on 
Energy and Natural Resources ordered S. 97 favorably reported. 
A similar bill (S. 203) was introduced by Senator Enzi in the 
108th Congress. The Subcommittee on Public Lands and Forests 
held a hearing on the bill on February 27, 2003. S. Hrg. 108-
10. At the business meeting on July 14, 2004, the Committee on 
Energy and Natural Resources ordered S. 203, as amended, 
favorably reported. S. Rept. 108-319. S. 203 passed the Senate, 
by unanimous consent, on September 15, 2004.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in an open 
business session on February 16, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass S. 97.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 contains the short title.
    Section 2 provides definitions used in the bill.
    Section 3(a) authorizes the Secretary of the Interior, with 
the consent of the Secretary of theArmy, 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 and 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.

                                                 February 28, 2005.
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. 97, the Big Horn 
Bentonite Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Megan 
Carroll and Deborah Reis.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 97--Big Horn Bentonite Act

    CBO estimates that implementing S. 97 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. Enacting the bill would not 
affect revenues. S. 97 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. 97 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 obtained 
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. 97 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 contacts for this estimate are Megan Carroll 
and Deborah Reis. 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. 97, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration were included in testimony 
received by the Committee at a hearing on S. 203 during the 
108th Congress on February 27, 2005.

  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 of 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 the 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.

                        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. 97, as ordered 
reported.