(PDF provides a complete and accurate display of this text.)
Calendar No. 52
109th Congress Report
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lands that were withdrawn for military purposes by Executive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 These lands were withdrawn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 The lands remain withdrawn and reserved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
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portion of these withdrawn lands will avoid the bypass of the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
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.
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 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
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
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.
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
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
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
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
Little, if any, additional paperwork would result from the
enactment of S. 97, as ordered reported.
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
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
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