29–010

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referred the bill (S. 203) to open certain withdrawn land in Big 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acres of previously withdrawn land located in the E1⁄2 NE1⁄4 SE1⁄4 of sec. 32, 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—

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(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. 

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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. 

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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:

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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 

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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.

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