39–010 

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that were withdrawn for military purposes by Executive Order 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 These lands were withdrawn from 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 The lands remain withdrawn and reserved under the 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these withdrawn lands will avoid the bypass of the Federal mineral 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. 

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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 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 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. 

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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 

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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 addiVerDate Aug 04 2004 06:07 Mar 15, 2005 Jkt 039010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6969 E:\HR\OC\SR037.XXX SR037
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tional 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. 

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