29–010 

Calendar No. 173 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–95 

NORTH FORK WATERSHED PROTECTION 

SEPTEMBER 10, 2013.—Ordered to be printed 

Mr. WYDEN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 255] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 255) 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: 

On page 3, after line 2, add the following: 

(c) EFFECT OF SECTION.—Nothing in this section prohibits the Secretary of the Interior from taking any action 

necessary to complete any requirement under the National 

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

or the Endangered Species Act of 1973 (16 U.S.C. 1531 et 

seq.) required for permitting surface-disturbing activity to 

occur on any lease issued before the date of enactment of 

this Act. 

PURPOSE

The purpose of S. 255 is to withdraw approximately 362,000 

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 


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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 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. 255 would withdraw, subject to valid existing rights, the Federal lands designated on the map referenced in the bill from all 

forms of location, entry, and patent under the mining laws of the 

United States; and from 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. 255. 

Several lease holders have voluntarily relinquished oil and gas 

leases within the area withdrawn under S. 255, although a significant number of outstanding leases remain. 

LEGISLATIVE HISTORY

S. 255 was introduced by Senators Baucus and Tester on February 7, 2013. The Subcommittee on Public Lands, Forests, and 

Mining held a hearing on the bill on April 25, 2013. At its business 

meeting on June 18, 2013, the Committee ordered S. 255 favorably 

reported with an amendment. 

In the 112th Congress, Senators Baucus and Tester introduced 

similar legislation, S. 233. The Subcommittee on Public Lands and 

Forests held a hearing on S. 233 on May 25, 2011 (S. Hrg. 112– 

131). During the 111th Congress, the Committee considered similar 

legislation, S. 3075, also sponsored by Senators Baucus and Tester. 

The Subcommittee on Public Lands and Forests held a hearing on 

S. 3075 on April 28, 2010 (S. Hrg. 111–744). 

The Committee considered S. 3075 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 (S. Rept. 111–316). 


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COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on June 18, 2013, by a voice vote of a 

quorum present, recommends that the Senate pass S. 255, if 

amended as described herein. 

COMMITTEE AMENDMENT

During its consideration of S. 255, the Committee adopted an 

amendment to add a new subsection to the withdrawal language in 

section 3. The amendment states that nothing in the section prohibits the Secretary of the Interior for taking any action necessary 

to complete any requirement under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) required for permitting 

surface-disturbing activity to occur on any lease issued before the 

date of enactment of the Act. 

SECTION-BY-SECTION ANALYSIS

Section 1 contains the short title, the ‘‘North Fork Watershed 

Protection Act of 2013.’’ 

Section 2 defines key terms used in the bill. 

Section 3 withdraws, subject to valid existing rights, the lands 

depicted on the referenced map from all forms of location, entry, 

and patent under the mining laws and disposition under laws relating to mineral and geothermal leasing. 

Subsection (b) states that the map shall be available no later 

than 30 days after enactment of this Act at appropriate offices of 

the Bureau of Land Management. 

Subsection (c) provides that nothing in this section prohibits the 

Secretary of the Interior from taking any actions under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or 

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) required for permitting surface-disturbing activity to occur on any 

lease issued before the date of enactment of this Act. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

S. 255—North Fork Watershed Protection Act of 2013 

S. 255 would withdraw 430,000 acres of federal lands in Montana 

from programs to develop geothermal and mineral resources. The 

affected lands, which lie adjacent to Glacier National Park, are already protected for wilderness values, and the proposed designation 

would not significantly affect the way they are managed. Based on 

information provided by the Bureau of Land Management (BLM), 

CBO estimates that implementing the legislation would have no 

significant impact on the federal budget. Enacting S. 255 would not 

affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

The bill would not affect valid, existing rights on the affected 

lands, including the rights of private entities to 39 oil and gas 

leases that have been suspended since 1985 because of litigation. 

BLM has not offered any new oil and gas leases on the affected 


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lands since that litigation, and CBO does not expect any such 

leases to be offered in the next 10 years. In addition, based on information provided by BLM, CBO expects that no income would be 

derived from other activities on the affected lands over that period; 

therefore, we estimate that enacting S. 255 would not affect direct 

spending. 

S. 255 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 Theresa Gullo, 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. 255. 

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. 255, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

S. 255, as 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 Bureau of Land Management and 

the Forest Service at the April 25, 2013, Subcommittee on Public 

Lands, Forests and Mining hearing on S. 255 follows: 

STATEMENT OF JAMES M. PEN ̃ A, ASSOCIATE DEPUTY CHIEF, 

NATIONAL FOREST SYSTEM, FOREST SERVICE, DEPARTMENT OF AGRICULTURE

Mr. Chairman, Ranking Member Barrasso, and members of the Committee, thank you for inviting me here 

today to testify regarding S. 255, the North Fork Watershed Protection Act of 2013. 

S. 255 would, subject to valid existing rights, withdraw 

National Forest System (NFS) lands located in the North 

Fork and Middle Fork of Flathead River watersheds in 

Montana which are primarily 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. S. 255 would also 

withdrawal a small amount of land in the Kootenai National Forest. Currently there are 39 existing leases or 

claims in the North Fork comprising 56,117 acres and 18 

existing leases or claims in the Middle Fork comprising 


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8,595 acres. The Department supports S. 255, 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 issues related 

to the status of the existing claims and leases. 

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 and Middle 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. 

255, 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 362,000 

acres from the operation of the locatable and leasable mineral laws subject to valid existing rights. This includes approximately 291,000 acres on the Flathead National Forest 

and approximately 5,000 acres on the Kootenai National 

Forest in the North Fork watershed and 66,000 acres in 

the Middle Fork watershed on the Flathead National Forest. 

The majority of North Fork and Middle Fork of the Flathead has low to moderate potential for the occurrence of 

locatable and leasable minerals. A portion of the Middle 

Fork does have an area of high potential for oil and gas 

occurrence. Much of the North Fork and Middle 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 or Middle Fork. 

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. 

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. We are pleased this bill would not preclude the 

removal and use of mineral materials, such as aggregate. 

The ability to continue using those local mineral materials 

would allow us to more easily maintain local roads, thus 

reduce erosion related impacts to streams and lakes in the 

North Fork and Middle Fork drainages. 


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This concludes my testimony and I would be happy to 

answer any questions that you may have. 

STATEMENT OF JAMIE CONNELL, ACTING DEPUTY DIRECTOR, BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE

INTERIOR

Thank you for the invitation to testify on S. 255, the 

North Fork Watershed Protection Act of 2013. The Department of the Interior supports S. 255, 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. 255 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 wellestablished 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 addressVerDate Mar 15 2010 05:31 Sep 12, 2013 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6969 E:\HR\OC\SR095.XXX SR095

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es 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. At the time legislation was initially proposed in 

2010, there were 115 oil and gas leases in the North Fork 

watershed that the BLM issued between 1982 and 1985. 

The leases, which cover over 238,000 acres, are inactive 

and under suspension as part of the 1985 court case 

Conner v. Burford. At the request of Montana Senators 

Max Baucus and John Tester, leaseholders have voluntarily relinquished 76 leases consisting of almost 182,000 

acres. 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. 255

S. 255 withdraws all Federal lands or interest in lands, 

comprised of approximately 430,000 acres of the Flathead 

National Forest, within the North and Middle Fork watersheds 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. 255 does 

not affect valid, existing rights, including the 39 leases in 

the North Fork watershed that are suspended under the 

Conner v. Burford litigation. The Department fully supports S. 233 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 


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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. 255 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. 255 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. 255 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 S. 255, as ordered reported. 

Æ 


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