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Week Ending July 29, 2005
S.97 A bill to provide for the sale of bentonite in Big Horn County, Wyoming.
BRIEF
The bill authorizes and directs the Secretary of 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removal of the bentonite that provides for the payment of $1.00 per ton of bentonite removed” but the contract can be rescinded if the the Secretary of Defense needs the land of national defense or security.
The committee report noted, “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being mined on public lands in Big Horn County, Wyoming, on the north and south sides of military lands that were withdrawn for military purposes by Executive Order 7491, dated November 14, 1936. These lands were withdrawn from settlement, location, sale or entry and reserved for use by the War Department. The lands remain withdrawn and reserved under the jurisdiction of the Secretary of the Army for use as a target range.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“Providing authority to mine bentonite on a specified portion of these withdrawn lands will avoid the bypass of the Federal mineral and the opportunity to follow the natural sequence for mining.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”
{More Information below}
Sponsor: Senator Michael B. Enzi (R-WY)
Vote: Passed Senate by Unanimous Consent (July 27, 2005)
Cost to the taxpayers: “CBO estimates that, over the next several years, S. 97 would generate a total of less than $5,000…”
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MORE INFORMATION
SOME COMMENTS ON THE BILL WHEN IT WAS REVIEWED IN 2004
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of the Subcommittee, thank you for the opportunity to appear here today to discuss S. 203, a bill to open certain withdrawn lands in Big Horn County, Wyoming, to locatable mineral development for bentonite mining.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 These lands remain withdrawn and reserved under the jurisdiction of the Secretary of the Army for target range purposes, and are currently used by the Wyoming Army National Guard.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 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.
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