[Senate Report 111-316]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 602
111th Congress                                                   Report
  2d Session                  SENATE                            111-316
=======================================================================
 
                  NORTH FORK WATERSHED PROTECTION ACT 

                                _______
                                

               September 27, 2010.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 3075]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 3075) to withdraw certain Federal land 
and interests in that land from location, entry, and patent 
under the mining laws and disposition under the mineral and 
geothermal leasing laws, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill, as amended, do pass.
    The amendment is as follows:
    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 ``North Fork Watershed Protection Act 
of 2010''.

SEC. 2. DEFINITIONS.

    In this Act:
          (1) Eligible federal land.--The term ``eligible Federal 
        land'' means--
                  (A) any federally owned land or interest in land 
                depicted on the Map as within the North Fork Federal 
                Lands Withdrawal Area; or
                  (B) any land or interest in land located within the 
                North Fork Federal Lands Withdrawal Area that is 
                acquired by the Federal Government after the date of 
                enactment of this Act.
          (2) Map.--The term ``Map'' means the Bureau of Land 
        Management map entitled ``North Fork Federal Lands Withdrawal 
        Area'' and dated June 9, 2010.

SEC. 3. WITHDRAWAL.

    (a) Withdrawal.--Subject to valid existing rights, the eligible 
Federal land is withdrawn from--
          (1) all forms of location, entry, and patent under the mining 
        laws; and
          (2) disposition under all laws relating to mineral leasing 
        and geothermal leasing.
    (b) Availability of Map.--Not later than 30 days after the date of 
enactment of this Act, the Map shall be made available to the public at 
each appropriate office of the Bureau of Land Management.

                                PURPOSE

    The purpose of S. 3075, as ordered reported, is to withdraw 
approximately 382,800 acres of Federal land located along the 
Flathead River in northwestern Montana from the mining laws and 
mineral and geothermal leasing laws.

                          BACKGROUND AND NEED

    The North Fork of the Flathead River extends approximately 
90 miles from its headwaters in southern British Columbia south 
into Montana, where it forms the western boundary of Glacier 
National Park. The Flathead River was designated as a component 
of the National Wild and Scenic Rivers System in 1976.
    Although the North Fork itself is protected under the Wild 
and Scenic Rivers Act, the Canadian portion of the river and 
the river's watershed are not protected. There have been 
several mining or oil and gas development projects over the 
years which have raised concerns about the potential impact on 
the river's water quality.
    In February 2010, the Province of British Columbia and the 
State of Montana signed a Memorandum of Understanding (MOU) to 
preclude mining, oil and gas development, and coalbed methane 
extraction in the Flathead. Under the agreement, mining, oil 
and gas, coalbed methane, and coal development would be 
prohibited within the basin. However, much of the North Fork's 
watershed in Montana is Federal land.
    S. 3075 would withdraw the Federal acreage designated on 
the June 9, 2010 map referenced in the bill from all forms of 
location, entry, and patent under the mining laws of the United 
States; and disposition under all laws relating to mineral 
leasing and geothermal leasing. This action will prevent future 
mining, oil and gas, coal bed methane, coal, and geothermal 
development, as well as any other activities governed by these 
statutes.
    In 1982 the Department of the Interior issued several oil 
and gas leases on national forest lands within the North Fork 
watershed. Those leases were later suspended in 1988 when the 
Ninth Circuit Court of Appeals ruled that the agency had failed 
to comply with applicable environmental laws prior to issuing 
the leases. The Federal agencies were enjoined from allowing 
any activity on the issued leases. Since that decision, no 
action has been taken on these leases, and there is presently 
no oil and gas development on federal land within the area 
proposed to be withdrawn by S. 3075. Since the introduction of 
S. 3075, several lease holders have voluntarily relinquished 
oil and gas leases covering approximately 200,000 acres of 
lands within the area withdrawn under S. 3075, although a 
significant number of outstanding leases remain.

                          LEGISLATIVE HISTORY

    S. 3075 was introduced by Senators Baucus and Tester on 
March 4, 2010. The subcommittee on Public Lands and Forests 
held a hearing on S. 3075 on April 28, 2010.
    The Committee on Energy and Natural Resources considered 
the bill at its business meeting on July 21, 2010, and by a 
vote of 13-10 adopted an amendment in the nature of a 
substitute. At its business meeting on August 5, 2010, the 
Committee ordered 
S. 3075 favorably reported, as amended.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on August 5, 2010, by a voice vote of a quorum 
present, recommends that the Senate pass S. 3075, if amended as 
described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 3075, the Committee adopted 
an amendment in the nature of a substitute. The amendment 
provides an updated map reference reflecting new acreage in the 
withdrawal area. As introduced, S. 3075 also withdrew lands 
within Glacier National Park. The amendment deleted that 
provision since the lands within the park are already 
withdrawn. The amendment is explained in detail in the section-
by-section analysis below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 contains the short title, the ``North Fork 
Watershed Protection Act of 2010''.
    Section 2 defines key terms used in the bill.
    Section 3 withdraws, subject to valid existing rights, the 
lands depicted on the map from all forms of location, entry, 
and patent under the mining laws and disposition under laws 
relating to mineral and geothermal leasing.

                   COST AND BUDGETARY CONSIDERATIONS

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

S. 3075--North Fork Watershed Protection Act of 2010

    S. 3075 would withdraw about 300,000 acres of National 
Forest System lands in Montana from disposal, mining, and 
mineral leasing activities. The affected lands are jointly 
managed by the Forest Service and the Bureau of Land Management 
(BLM). Based on information from those agencies, CBO estimates 
that implementing the legislation would have no significant 
impact on the federal budget.
    In 1985, a federal court ordered BLM to suspend all mineral 
leases on the affected lands. Based on information from the 
Forest Service and BLM, CBO expects that the suspension will 
remain in place over the next 10 years. Further, based on 
information from those agencies, CBO expects that those lands 
will not be sold or generate any receipts from mining 
activities over that period. Thus, CBO estimates that enacting 
S. 3075 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    S. 3075 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Peter H. Fontaine, 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. 3075.
    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. 3075, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 3075, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the Department of Agriculture and 
the Department of the Interior at the April 28, 2010 
Subcommittee hearing on S. 3075 follows.

  Statement of Faye Krueger, Acting Associate Deputy Chief, National 
        Forest System, Forest Service, Department of Agriculture

    Mr. Chairman, Ranking Member Barrasso and members of the 
Subcommittee, thank you for the opportunity to provide the 
views of the Department of Agriculture on S. 3075, the ``North 
Fork Watershed Protection Act of 2010.''
    S. 3075 would, subject to valid existing rights, withdraw 
National Forest System (NFS) lands located in the North Fork of 
Flathead River watershed in Montana which are managed as part 
of the Flathead National Forest from location, entry, and 
patent under the mining laws and from disposition under the 
mineral and geothermal leasing laws. The Department supports S. 
3075, however, I would like to clarify that although the 
Department has surface management authority concerning mineral 
operations, the management of the federal mineral estate falls 
within the jurisdiction of the Secretary of the Interior. We 
defer to the Department of the Interior on all issues related 
to the status of the existing claims and leases.


                               background


    The Forest Service administers surface resources on nearly 
193 million acres of NFS lands located in forty-two states and 
the Commonwealth of Puerto Rico. The Forest Plan for the 
Flathead National Forest blends areas of multiple uses in the 
North Fork with areas of specific or limited uses elsewhere on 
the Forest. Under current law, NFS lands reserved from the 
public domain pursuant to the Creative Act of 1891, including 
those in S. 3075, are open to location, entry and patent under 
the United States Mining Laws unless those lands have 
subsequently been withdrawn from the application of the mining 
laws. This bill would withdraw approximately 291,000 acres of 
the Flathead NF from the operation of the locatable and 
leasable mineral laws subject to valid existing rights.
    The North Fork of the Flathead has low to moderate 
potential for the occurrence of locatable and leasable 
minerals. Much of the North Fork was leased for oil and gas in 
the early 1980s. Subsequently, the Bureau of Land Management 
(BLM) and Forest Service were sued and BLM suspended the leases 
in 1985 to comply with a District Court ruling (Conner v. 
Burford, 605 F. Supp. 107 (D.Mont.1985)). Presently, there are 
no active locatable or leasable operations, including oil and 
gas, in the North Fork. There are 115 leases that have been 
suspended by the Secretary of the Interior since 1985.


                          comments on s. 3075


    We recognize the bill would not affect the existing oil and 
gas leases because they would constitute valid existing rights. 
We also recognize the bill would not change the court's order 
in Conner v. Burford requiring the BLM and Forest Service to 
prepare an environmental impact statement (EIS) under the 
National Environmental Policy Act before authorizing any 
surface disturbing activities on the affected leases.
    We are pleased that this bill would not preclude the 
removal and use of mineral materials found on the NFS lands 
that would be subject to the bill. The Flathead National Forest 
and Flathead County rely on the close proximity of local 
sources of aggregate to maintain roads economically and as a 
source of building materials. Commensurate with the goal of S. 
3075 to protect the North Fork watershed, the ability to 
continue using those mineral materials would allow us to 
adequately maintain local roads and reduce erosion related 
impacts to streams and lakes in the North Fork.
    We appreciate Senators Baucus and Tester's strong 
commitment to protecting Montana's natural resources.
    I would be happy to answer any questions from the 
committee. Thank you. 

   Statement of Marcilynn A. Burke, Deputy Director, Bureau of Land 
                 Management, Department of the Interior

    Thank you for the invitation to testify on S. 3075, the 
North Fork Watershed Protection Act of 2010. The Department of 
the Interior supports S. 3075, which would withdraw Federal 
lands within the North Fork watershed of Montana's Flathead 
River from all forms of location, entry, and patent under the 
mining laws and from disposition under all laws related to 
mineral or geothermal leasing. Enactment of S. 3075 would mark 
an important milestone in the work occurring across multiple 
jurisdictions to help preserve the remarkable resources in the 
Crown of the Continent ecosystem.


                               background


    The Flathead River Basin, a key portion of an area known as 
the Crown of the Continent ecosystem, spans the boundaries of 
the United States and Canada. It includes part of the United 
States' Glacier National Park and borders Canada's Waterton 
Lakes National Park. These two parks comprise the world's first 
International Peace Park as well as a World Heritage Site. The 
U.S. Forest Service's Flathead National Forest is also located 
within the Flathead River watershed. The Bureau of Land 
Management manages the Federal mineral estate underlying the 
Flathead National Forest.
    Running along the west side of the Continental Divide, the 
North Fork of the Flathead River enters the United States at 
the Canadian border and forms the western border of Glacier 
National Park until its confluence with the Middle Fork of the 
Flathead River near the southern end of Glacier National Park. 
The North Fork watershed, a sub-basin of the Flathead River 
watershed, includes areas currently managed by the National 
Park Service, the State of Montana, the U.S. Forest Service, 
and some private landowners.
    The Flathead River Basin is recognized for its natural 
resource values, including wildlife corridors for large and 
medium-sized carnivores, aquatic habitat, and plant species 
diversity. The area is rich in cultural heritage resources, 
with archeological evidence of human habitation starting 10,000 
years ago. Several Indian tribes, including the Blackfeet, the 
Salish, and the Kootenai, have a well-established presence in 
the area. The area also has celebrated recreational 
opportunities, including hunting, fishing, and backcountry 
hiking and camping.
    There has been interest in protecting the Crown of the 
Continent resources for some time. On February 18, 2010, the 
State of Montana and the Province of British Columbia executed 
a Memorandum of Understanding which addresses a myriad of 
issues related to the Flathead River Basin on both sides of the 
U.S.-Canada border. The intention of Part I.A. of that 
memorandum is to ``[r]emove mining, oil and gas, and coal 
development as permissible land uses in the Flathead River 
Basin.''
    The Flathead River Basin contains Federally-owned 
subsurface mineral estate under National Forest System lands 
that the Federal government has leased for oil and gas 
development, including 115 oil and gas leases in the North Fork 
watershed that the BLM issued between 1982 and 1985. The 
leases, which cover over 225,000 acres, are inactive and under 
suspension as part of the 1985 court case Conner v. Burford. 
The BLM has not offered any other leases in the Flathead 
National Forest since the Conner v. Burford litigation 
suspended the existing leases in 1985.
    The U.S. Forest Service is responsible for the surface 
management of National Forest System land; however, as noted 
earlier, the Secretary of the Interior and the BLM are 
responsible for administering the Federal subsurface mineral 
estate under the Mining Law of 1872, the Mineral Leasing Act of 
1920, and various mineral leasing acts. With respect to 
locatable minerals and oil and gas resources, the Forest 
Service has authority to regulate the effects of mineral 
operations upon National Forest System resources. The BLM only 
issues mineral leases for locatable minerals and oil and gas 
resources upon concurrence of the surface management agency and 
always works cooperatively with the agency to ensure that 
management goals and objectives for mineral exploration and 
development activities are achieved, that operations are 
conducted to minimize effects on natural resources, and that 
the land affected by operations is reclaimed.


                                s. 3075


    S. 3075 withdraws all Federal lands or interest in lands, 
comprised of approximately 291,000 acres of the Flathead 
National Forest, within the North Fork watershed of the 
Flathead River from all forms of location, entry, and patent 
under the mining laws and from disposition under all laws 
related to mineral or geothermal leasing. We note that National 
Park acreage within the watershed is already unavailable for 
mineral entry. S. 3075 does not affect valid, existing rights, 
including the 115 leases in the North Fork watershed that are 
suspended under the Conner v. Burford litigation. The 
Department fully supports S. 3075 as it furthers the goal of 
preserving the important resources of this region.
    The Waterton-Glacier International Peace Park, which 
extends from Canada into the United States, is one of the great 
protected ecosystems on the North American continent. A 2010 
World Heritage Center/International Union for the Conservation 
of Nature Report noted that the International Peace Park is 
``one of the largest, most pristine, intact, and best protected 
expanses of natural terrain in North America. It provides the 
wide range of non-fragmented habitats and key ecological 
connections that are vital for the survival and security of 
wildlife and plants in the Waterton-Glacier property and the 
Flathead watershed.'' Retaining this expanse of natural 
landscape in the Crown of the Continent ecosystem is of vital 
importance for providing ecosystem connectivity, which is 
essential for the growth and survival of plants and animals in 
the region. S. 3075 will help accomplish this goal.
    The Department of the Interior is also committed to 
maintaining the ecological integrity of Glacier National Park, 
one of the most noteworthy natural and cultural treasures of 
our Nation.
    Preserving the region's and the park's water resources is 
also critical. The rich aquatic ecosystems provide breeding and 
feeding habitats for a variety of important species, and the 
Department recognizes the importance of maintaining critical 
habitat corridors when planning for resources uses. S. 3075 
will help protect and preserve the important resources of the 
greater Crown of the Continent ecosystem, including those 
within Glacier National Park.


                               conclusion


    The Department supports S. 3075 and commends the many 
parties involved in protecting the North Fork of the Flathead 
River and the important resources shared by the United States 
and Canada. We hope that this legislation and the efforts of 
the federal and state/provincial governments add to the 
important legacy of conservation in the Glacier/Waterton Lakes 
area and Flathead River basin.

                        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. 3075, as 
ordered reported.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

