Congressional Record May 19, 1977
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Legislative History Congressional Record May 19, 1977 |
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{S7996} The PRESIDING OFFICER. Under the previous order, the hour of 2 p.m. having
arrived, the Senate will now proceed to the consideration of S 7, which the clerk will state by title.
S7996 The legislative clerk read as follows:
S7996 Calendar No. 107, S. 7, a bill to provide for the Cooperation between the Secretary of the
Interior and the States with respect to the regulation of surface mining operations, and the
acquisition and reclamation of abandoned mines, and for other purposes.
S7996 The Senate proceeded to consider the bill, which had been reported from the Committee on
Energy and Natura Resources with an amendment in the nature of a substitute.
S7996 Mr. METCALF. Mr. President, yesterday I placed an opening statement in the RECORD.
(See RECORD of May 18, 1977, Page S7890.)
S7996 I ask unanimous consent to have printed in the RECORD a letter from Secretary Andrus
to the chairman of our committee, Senator JACKSON, with respect to this bill.
S7996 There being no objection, the letter was ordered to be printed in the RECORD, as follows:
S7996 U.S. DEPARTMENT OF THE INTERIOR, Washington, D.C., May 17, 1977.
S7996 Hon. HENRY M. JACKSON, Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, D.C.
S7996 DEAR MR. CHAIRMAN: In my judgment, S. 7 as reported by your Committee, provides
a sound State-Federal partnership for carrying out an effective and balanced surface coal mining
reclamation and enforcement program.
S7996 The Administration strongly opposes an amendment which I understand may be offered to
permit individual States to continue surface mining regulation under their existing laws, modified
only to incorporate specified performance standards. Such an amendment was recently endorsed by
the Western Governors' Regional Energy Policy Office. It would eliminate major protections and
procedural safeguards in the bill which are essential to establishing a fair and effective approach to
surface mining regulation.
S7996 As you know, we proposed and S. 7 incorporates specific provisions in section 423 and
elsewhere to accommodate States desiring to carry out the program on Federal lands and we have
endorsed other changes to assure that States will have a strong role in controlling the abuses of
surface coal mining within their borders. As a former State governor, I am keenly aware that every
effort must be made to encourage strong state programs without undue Federal intruston.
S7996 In contrast to the provisions of the reported bill, however, the proposed amendment would
do serious damage to the integrity of the regulatory program of S. 7. If offered. I urge the Senate to
defeat such an amendment.
S7996 In addition to our opposition to this amendment, several other matters are of particular
concern. I urge you rsupport of a strong provision for protection of alluvial valley floors, such as
that incorporated in H.R. 2 as passed. We have also recommended a special five-year prime
agricultural land protection until the effect of mining on these lands can be ascertained. We oppose
the 30 month exemption in the reported S. 7 for persons producing less than 200,000 tons annually
and any weakening of the basic return-to-approximate-original-contour and hiwhwall elimination
standards of the bill. To assure that the surface mining reclamation and enforcement program is a
sound one, I urge the Senate to give favorable consideration to these views and to recommendations
we have previously made to your Committee.
S7996 Sincerely,
S7996 CECIL D. ANDRUS, Secretary.
S7996 Mr. HANSEN. Mr. President, many of us here have been through the debate on surface
mining legislation a few times before. As a member of the Senate Interior Committee, now known
as the Energy and Natural Resources Committee, I was involved in the formulation of the various
surface-mining bills which preceded the one we are debating today. There are some new issues this
time around, but essentially, we will be focusing on some very familiar questions, such as how to
treat fairly the private landowner with Federal coal beneath his property, how to deal with mining in
alluvial valley floors, how to handle the problem of damage caused by past mining, and to what
extent the Federal Government should dictate to the individual States on regulation of mining and
assuring that reclamatin will take place after mining.
{S7997} For a number of years, we in the West have talked about the fact that the Nation is
looking to us to reduce the severity of the energy crisis. We have expressed our concern about teh
effects which intensive energy development will have on our Western economy and way of living.
By calling for massive conversion to coal by industry, the President has brought into sharp focus the
role that will be played by the West, where there are vast amounts of coal.
S7997 Over the years as Congress has debated several surface-mining bills, I have repeated my
goal of formulating legislation that will protect our environment and still allow for recovery of the
resources in a balanced manner. My objectives have not changed: First, to require reclamation of
mined lands; second, to treat surface owners fairly; and third, to allow our Nation access to its
abundant supply of coal.
S7997 The bill reported out by the Senate Energy and Natural Resources Committee will insure
reclamation. Proof that land can be reclamed will have to be evident before mining can take place.
While I had hoped that the individual States could be given more latitude in adopting regulatory and
reclamation standards specifically suited to local conditions and circumstances, I am satisfied with
the bill's provision to protect the agreements. Wyoming and other States have signed with the
Interior Department to allow application of State law to all surface-mining in these States. The
provision says that any State with an approved State program "may elect to enter into a cooperative
agreement with the Secretary to provide for State regulation of surface coal mining and reclamation
operations on Federal lands within the State," providing the State has the capability to enforce the
law. The provision also says that "States with cooperative agreements existing on the date of
enactment may elect to continue regulation on Federal lands within the State" until the State
program is formally approved.
S7997 The Senate committee's bill also provides protection for the private land-owner with
Federal coal beneath his property. There are more than 16 million acres of privately-owned land in
this country where the coal beneath the land is owned by the Federal Government. The
surface-owner is protected under this bill by a provision I proposed in committee. The original
version of the Senate bill contained a total prohibition on mining of any Federal coal beneath a
privately owned surface. The committee deleted that provision and also rejected an initial
amendment of mine to require surface-owner consent after leasing of the Federal coal, but before
mining.
S7997 The committee then accepted my compromise amendment, which was identical to the
House-passed provision, to require the Government to obtain written consent from the surface owner
before leasing the coal. A surface owner is defined as one who has held title to and lived on the land
for at least 3 years and has personally conducted farming or ranching operations or received a
significant portion of income, if any, from such farming or ranching.
S7997 The Senate bill also addresses the problem of damage from past mining. Citizens of Rock
Springs, Wyo., are probably as well-qualified as anyone in this country to bear witness to the fact
that great damage has been caused by past mining practices. Their entire community is situated
above abandoned underground coal mine voids. The earth above these voids has collapsed in many
areas of the town, destroying public and personal property and jeopardizing public health and safety.
Of course, such problems are not confined to Rock Springs, although it is that situation I am most
familiar with.
S7997 The Bureau of Mines has indicated that approximately 3.4 million acres of land
throughout the United States has been affected by surface and underground coal mining in the past
40 years or so, and 569,000 acres of surface-mined land remains unreclaimed, while 1.8 million
acres of underground mined land has been affected by subsidence like that occurring in Rock
Springs. There are the problems of burning coal waste banks and of fires in underground mines.
Such fires and the noxious gases they generate are a threat to people, wildlife, and vegetative life.
Further, they consume vast quantities of coal. The Bureau of Mines says there are 255 uncontrolled
mine fires burning today in 16 States including Wyoming.
S7997 In the case of areas affected by subsidence, there are tragic situations where people's homes
and businesses have been destroyed. We all agree that such situations should be addressed, and the
abandoned mine reclamation fund is meant to help solve these problems.
S7997 In the past, the Government has had authority to correct subsidence and to help people
affected by subsidence only if they lived in the Appalachian States. That is because specific
authority was included in legislation of benefit to these particular States which said the Government
could pay 75 percent of the cost of correcting subsidence caused by past mining.
S7997 The Bureau of Mines has not had the authority to correct subsidence problems outside of
the Appalachian area. The Bureau has done some underground mine backfilling at Rock Springs,
but only because it wanted to test a new backfilling process. And even under this research effort
which has resulted in the backfilling of some of the mine voids beneath Rock Springs, the
Government has not been able to deal with the human aspects of the problem - to help the peopel
who list their homes and their businesses because of subsidence.
S7997 About 3 or 4 years ago when the committee was working on an earlier version of
surface-mining legislation. I asked that there be included a provision extending the authoirty which
the Government already had in Appalachia to fill and seal abandoned underground mine voids and
tunnels. I had in mind, of course, extending this authority so that the citizens of Rock Springs and
other areas affected by subsidence could be helped. That provision was expanded upon by others
with a concern about abandoned mine problems, and what started out to be essentially a subsidence
control provision has become the provision we are considering today which sets up an abandoned
mine reclamation fund and calls for broad efforts to reclaim areas damaged by past mining.
S7997 It is my understanding that the money that will accrue to Wyoming as the State's share of
the abandoned mine reclamation fund could be used to help the people of Rock Springs and of any
other area damaged by past mining. It could be used to help compensate people who have lost their
homes or who have been damaged because of subsidence.
S7997 There has been a great deal of debate about whether or not mining should be allowed in
alluvial valley floors. The House passed the so-called Baucus amendment which essentially bans
mining in such areas. The Senate bill is far more reasonable in this regard. The Senate section on
alluvial valley floors is based on the overall premise of the bill that mining will not be carried out in
areas where the land cannot be reclaimed. Insofar as alluvial valley floors are concerned. I see no
reason to ban mining when reclamation can be carried out, and when such mining would not
jeopardize water rights. The Senate provision is more strict than I would have liked, but if does
recognize the validity of existing operations in such areas. It is vastly preferable to the House
provision.
S7997 Mr. JACKSON. Mr. President, today we began the next to last step in the long effort by
the Congress to develop Federal legislation governing the surface mining of coal in our country. I
will not recite the long history of hearings, committee markups, floor debate and Senate-House
conference committee meetings which have gone into this legislation. Suffice it to say that both the
93d and 94th Congresses passed surface mining bills by overwhelming margins. Unfortunately,
President Ford saw fit to veto both bills and in 1975 the House of Representatives failed by a mere
three votes in its attempt to override the veto.
S7997 I firmly believe that this legislation will be enacted this year. We have a President who has
repeatedly stated his support for it. Responsible representatives of the coal industry have indicated
that they can live with it. Recent studies by outside experts have demonstrated that the exaggerated
claims of adverse impacts made by the Ford administration and some industry representatives are
nonsense.
S7997 The United States is truly the "Saudi Arabia of coal." Development of coal is the key to
meeting our energy needs for the rest of this century.
{S7998} One of the major inhibiting factors to coal development in all of the coal regions of the
country - East and West - is the failure to establish Federal surface mining standards. Our coal
industry must know what the guidelines are in order to be able to plan their investments and proceed
with mining.
S7998 I think it is important to keep in mind that our domestic reserves of coal are so large that
we can afford to establish standards which provide strong protection for water quality, and
renewable resources even if in some instances this means that certain coal deposits will not be
mined.
S7998 Once we have established the rules for digging the coal, then we must insure that we can
burn it without impairing the quality of our air. The question of air quality standards will be before
the Senate soon. Furthermore, the Energy Research and Development authorization bill (S. 36)
reported by the Committee on Energy and Natural Resources steps up the necessary research and
development to find ways of solving the air quality problem. For example, we are encouraging the
development of better methods of removing the sulfur from the coal before or during burning.
S7998 In closing, I want to pay tribute to Senator LEE METCALF who has led the fight for
Federal surface mining legislation for the last 4 years. He has done the work of chairing hearings,
leading the committee markups and managing the legislation on the floor. The Senate has
repeatedly endorsed his efforts by overwhelming votes. Indeed, the last Senate rollcall on surface
mining was 84 to 13. That kind of vote reflected the conviction of Senators from all parts of the
country that Senator METCALF had brought before them legislation which struck an appropriate
balance between the need to develop our coal reserves and to protect our lands and waters.It further
reflected their feeling that the legislation was flexible enough to be applicable to the mountain sides
of Appalachia, the fertile agricultural areas of the Midwest and the arid, fragile lands of the West,
and that it recognized the interest of the individual States by giving them the principal responsibility
for regulation of mining within their borders.
S7998 I am sure that Senator METCALF has been even more frustrated than I over the failure to
enact a Federal law. I am equally sure that such a law will be enacted within the next few weeks.
When it is, Senator METCALF will have the satisfaction of knowing that his efforts have, at long
last, borne fruite.
S7998 Mr. FORD. Mr. President, I ask unanimous consent that my amendment No 280 follow
the Johnston amendment.
S7998 The PRESIDING OFFICER (Mr. McINTYRE). Is there objection? The Chair hears
none, and it is so ordered.
S7998 Mr. METCALF. I have no problem.
S7998 Mr. President, I ask unanimous consent that the following staff members of the Committee
on Energy and Natural Resources be given the privilege of the floor during consideration of and
voting on S. 7: R. D. Folsom, Mike Harvey, Norm Williams, Dan Dreyfus, Mary Flanagan,
Caroline Clark, Fred Craft, Tom Wylie, Faye Widenmann, and Carol Sacchi.
S7998 Mr. HANSEN. Mr. President, will the Senator yield for a moment? I ask unanimous
consent that Tony Bevinetto of my staff, Rick Herod on Senator BAKER'S staff, and Mike Maloof
on Senator GRIFFIN'S staff may have access to the floor during all debate and votes on this bill.
S7998 The PRESIDING OFFICER. W2thout objection, it is so ordered.
S7998 Mr. JOHNSTON. Mr. President, I ask unanimous consent that Bob Szabo of my staff
have the same privileges of the floor.
S7998 The PRESIDING OFFICER. Without objection, it is so ordered.
S7998 Mr. HATCH. Mr. President, I ask unanimous consent that Henry Welch of my staff be
accorded the same privileges.
S7998 The PRESIDING OFFICER. Without objection, it is so ordered.
S7998 Mr. METCALF. Is the Senator from Alaska on the floor?
S7998 Mr. HANSEN. I do not think so.
S7998 Mr. METCALF. The Senator from Wyoming and I have already put our statements in the
RECORD, and we are prepared to listen to amendments.
S7998 Will the Senator from Louisiana offer one of his amendments until the Senator from
Alaska comes?
S7998 The PRESIDING OFFICER. The Senator from Louisiana is recognized.
S7998 AMENDMENT NO. 276
S7998 Mr. JOHNSTON. I have an amendment at the desk, which is No. 276, which I ask be
reported.
S7998 The PRESIDING OFFICER. The clerk will state the amendment.
S7998 The legislative clerk read as follows:
S7998 The Senator from Louisiana (Mr. JOHNSON), for himself, Mr. BUMPERS, and Mr.
HASKELL, proposes an amendment numbered 276.
S7998 The amendment is as follows:
S7998 On page 303, line 21, strike all of section 515 and insert in lieu thereof a new section 515
as follows:
S7998 SEC. 515. (a) The provisions and procedures specified in this section shall apply where
coal owned by the United States under land the surface rights to which are owned by a surface
owner as defined in this section is to be mined by methods other than underground mining
techniques.
S7998 (b) Any coal deposits subject to this section shall be offered for lease pursuant to section
2(a) of the Mineral Leasing Act of 1920 (30 U.S.C. 201a), except that no award shall be made by
any method other than competitive bidding.
S7998 (c) Prior to placing any deposit subject to this section in a leasing tract, the Secretary shall
give to any surface owner whose land is to be included in the proposed leasing tract actual written
notice of his intention to place such deposits under such land in a leasing tract.
S7998 (d) The Secretary shall not approve any mining plan pursuant to this Act until the
appraised value of the surface owner's interest has been tendered in accordance with the provisions
of subsection (e). Upon such tender and upon approval of the mining plan, the lessee may enter and
commence mining operations whether or not the determination of value of the surface owner's
interest is subject to judicial review as provided in this section.
S7998 (e) Tender of the appraised value of the surface owner's interest shall occur when -
S7998 (1) the lessee and the surface owner agree on an amount and method of compensation for
the surface owner's interest, whether or not the amount of compensation is fixed in accordance with
the provisions of subsection (f), and the surface owner has given the Secretary written consent for the
lessee to enter and commence surface mining operations; or
S7998 (2) the lessee has deposited the appraised value of the surface owner's interest in the United
States district court for the locality in which the leasing tract is located. At any time after the
appraised value of the surface owner's interest is deposited in the court and upon execution by the
surface owner and the lessee of a final settlement of their rights under this section, the surface owner
shall be entitled to withdraw from the registry of the court the full amount of the deposit.
S7998 (f) For purposes of this section, the term "appraised value of the surface owner's interest"
means the value of the surface owner's interest fixed by the Secretary based on appraisals made by
three appraisers. One such appraiser shall be appointed by the Secretary, one appointed by the
surface owner concerned, and one appointed jointly by the appraisers named by the Secretary and
such surface owner. In computing the value of the surface owner's interest, the appraisers shall fix
and determine -
S7998 (1) the difference between the fair market value of the surface estate, computed without
reference to the value of the underlying coal, immediately before mining is to commence, and what
said fair market value is reasonably expected to be immediately after mining and associated
activities have been completed;
S7998 (2) the net income the surface owner can be expected to lose as a result of the surface
mining operation during the two years immediately following approval of the mining plan:
Provided, however, That if mining and associated activities are reasonably expected to be completed
within a shorter period of time, then said net income shall be computed only for that shorter period
of time;
S7998 (3) the cost to the surface owner for relocation or dislocation during the mining and
reclamation process; and
S7998 (4) any other damage to the surface caused or reasonably anticipated to be caused by the
surface mining and reclamation operations.
S7998 (g) For the purpose of this section the term "surface owner" means the natural person or
persons (or corporation, the majority stock of which is held by a person or persons who meet the
other requirements of this section) who -
S7998 (1) hold legal or equitable title to the and surface; and
S7998 (2) have their principal place of residence on the land; or personally conduct farming or
ranching operations upon a farm or ranch unit to be affected by surface coal mining operations; or
receive directly a significant portion of their income, if any, from such farming or ranching
operations.
S7998 (h) The United States district court for the locality in which the leasing tract is located
shall have exclusive jurisdiction to review the determination of the value of the surface owner's
interest made pursuant to this section.
S7998 (i) This section shall not apply to Indian lands.
S7998 Mr. JOHNSTON. Mr. President, last year we considered the surface owner consent
provision of the strip-mining bill. After some weeks of hearing in the Committee on Interior, and
after extended debate on the floor of the Senate, the bill then went to a conference committee.
S7998 At the conference committee strip mining was virtually dead. Having met for some weeks
and being unable to agree on the subject of surface owner consent, the chairman, in effect,
announced that that was the last meeting, and we were folding our tents and closing the books on
strip mining.
{S7999} Mr. METCALF. Will the Senator identify the chairman? It was Congressman
UDALL.
S7999 Mr. JOHNSTON. Yes; Congressman UDALL was the chairman of the conference at that
time.
S7999 I wanted to see strip mining pass, and I came up with an amendment as a compromise
which saved surface owner consent and, in effect, saved the bill.
S7999 Now, I am not asking for any credit but I simply want to show the Senate where I am
coming from on the subject of strip mining as not only someone who has supported strip mining but
someone who could have killed the whole bill last year.
S7999 But, Mr. President, this year we are presented with a package on surface owner consent
that is so outrageous that it would make Teapot Dome not only legal but increase the number of
dollars involved in the Teapot Dome scandal.
S7999 Now, Mr. President, that is not an overstatement. Let me state precisely what this bill does
on surface owner consent. It states that in those situations where a surface owner owns the surface
and the Government owns the coal, no mining may take place until the surface owner consents. In
effect, the surface owner has two rights: first, he can lock up vast areas of very rich coal reserves
which are needed if President Carter's program on coal conversion means anything, so, first, he can
lock it up or, second, he can sell it.
S7999 Now, what kind of figures are we talking about, Mr. President? Well, I can tell you what
at least one of the lower estimates is. One of the lowest estimates we have heard is an example taken
from the Rocky Mountain Mineral Law Institute paper entitled "Representing the Land Owner in
Mineral or Suface Lease or Sales Transactions." Senator HANSEN uses this paper as justification
for his surface owner consent provision.
S7999 That article states that in a typical area, using a royalty rate of only 5 cents a ton, it would
amount to $1, ,632,000 a section, a section being, of course, 640 acres.
S7999 Now, the usual royalty rate is 50 cents a ton, but this article uses 5 cents a ton. So, Mr.
President, what we are saying in this bill, and let us understand this very clearly, is that a landowner
does not own the coal, the Federal Government does, but you are giving that lan-downer the right to
sell it for $1 ,600,000 at 5 cents a ton or 10 times that if it is at 50 cents a ton, which is the going
rate.
S7999 Can you imagine the enormity of that outrage, allowing a man who does not own
something to sell the Government's coal for $1 million or $1 6 million? It would be, if you had 50
cents a ton, which is the going rate, $1 6 million which would be the amount they would allow that
individual to sell the Government's coal for.
S7999 Now Mr. President, that is indefensible. That is not an overstatement. That is
indefensible. If that is bad, what would be worse would be to lock up the Government's coal. You
know, you have some people in this world who have such an affection for a piece of land that they
love that land above anything else, and I do not denigrate that emotion of love for the land. We have
people in my State who love every inch of a piece of property as if it were a child.
S7999 I do say that we have made a decision in this Government from the time of the founding of
the Government that there are some natural values that transcend that love of an individual for a
piece of land. One of those values is the natural good, whether it is building a highway, extending a
runway or an air base, or whatever the natural value is. We have given to the Government the right
of eminent domain, when the right of the people of this country transcends that of private property.
S7999 But what we are saying here is that the right of surface owners is so sacred, so sacrosanct
that it should be enshrined above all other values.
S7999 For that reason, Mr. President, I think the present bill with its present provision is contrary
to the national interest, it defeats President Carter's energy program, and it allows a ripoff of the
taxpayers of the property of the people of this country. We have a lot of people in this body who
talk about obscene profits, who talk about ripoffs. This is one prime example where, unless my
amendment is adopted, we are getting ready to make it legal, we are putting the imprimature of this
body on a sale of the taxpayers' property for private interests.
S7999 Mr. President, my amendment is joined in by the distinguished Senator from Arkansas
(Mr. BUMPERS), and the distinguished Senator from Colorado (Mr. HASKELL). What the
amendment does, in a word, is totally to recompense the value of that which the surface owner owns
and not allow him the right to lock up the coal or to sell the Government's coal. It provides that in
those instances where the surface owner owns the surface and the Government owns the coal the
surface owner may give his consent to the Secretary in which event the Secretary shall put the coal
up for lease and have it proceed at public bid, the highest bidder getting the bid and getting the lease.
S7999 If the owner and the Government are not able to agree as to what the value of that coal is,
then there is a provision provided for the appraisal of that piece of property where the owner will
appoint one person, the Government will appoint another, and the two will select a third, and they
shall in turn appraise the property.
S7999 Mr. President, under our amendment the owner would get more than the value of what he
owns. Let me give you the elements that would go into that appraisal. First, he would get the
difference between the fair market value of the surface estate, computed without reference to the
coal, immediately prior to and immediately after the mining operation. In other words, that is what
he loses. He loses the value of that surface estate as diminished by the mining operation.
S7999 Second, he would get the net income the surface owner can be expected to lose as a result
of the surface mining operation during the 2 years immediately following the approval of the mining
plan. In other words, he gets 2 years' loss of income.
S7999 Third, he gets the cost for relocation or dislocation during the mining operation.
S7999 And fourth, he gets any other damage to the surface caused or reasonably anticipated to be
caused by the surface mining and reclamation operations.
S7999 In other words, Mr. President, he gets to keep his property. He gets it back, and he gets the
value of what he loses. He gets his relocation expenses. He gets any other damages, and he gets 2
years' income. That is more than he has lost. I submit it is very generous; moreover, and this is very
important, he does not have the right to lock up the Government's coal.
S7999 Mr. President, in my State of Louisiana we have many industries that are burning gas.
That gas is very much needed around this country. We recognize that. We are willing to convert
those industries that can be converted to the burning of coal. But, Mr. President, if you want us to
burn coal in Louisiana so we can ship that gas elsewhere, you have to make the coal available and if
you are going to give every surface owner the right to say no to a mining operation, it simply is not
going to be possible to get the coal in the quantities needed to the Southwest where we are burning
gas.
S7999 You can hear a lot of people tell you we have billions of acres of coal and if you do not
mine them in the Powder River Basin you can go somewhere else. I can tell you this, Mr. President:
The owners of industry in my State commissioned a study to find out whether coal would be
available, and we have that study, which is rather thick, definitive, and detailed, about the
availability of coal, and let me tell you there is, first, a great question about the availability of coal.
People do not know whether they can mine it or not.
S7999 They do not know whether they can get the miners, and it is thought to take about 40,000
additional miners. They do not know whether they can get the capital, and they do not know
whether they are going to be able to get around environmental standards in order to be able - well,
really to get around this bill in order to mine the coal; and one of the biggest stumbling blocks right
here is the surface-owner lockup of the coal.
S7999 Either way you want to take it, either a lockup or a sale of the Government's coal, is
equally an outrage to the taxpayers of this country.
S7999 Mr. President, I think the case is so clear that it cannot be defended on any grounds other
than the desire to get more bucks from the Government, and I can understand that desire,
particularly if you represent some of the people who would like to get rich on the taxpayers, but as
far as the national interest is concerned, Mr. President, it is clear; I hope that the Senate will adopt
this amendment.
{S8000} The PRESIDING OFFICER.The Senator from Wyoming.
S8000 Mr. HANSEN. Mr. President, first let me pay tribute to my good friend, Senator
JOHNSTON, from Louisiana. I have had the pleasure and the privilege of working with him for as
many years as he has been a Member of the Senate. It is indeed a plesure to work and to be
associated with him. He is a very knowledgeable and able person, a person for whom I have the
deepest respect and regard.
S8000 Mr. JOHNSTON. Mr. President, will the Senator yield?
S8000 Mr. HANSEN. I am happy to yield.
S8000 Mr. JOHNSTON. I thank my able colleague from Wyoming.One of the great pleasures in
the Senate is to work with the Senator from Wyoming, who is the senior Senator now from
Wyoming, for whom I have not only great respect but great affection, as well. While I know his
remarks about me stem from overgenerosity with which he is greatly imbued, I, nevertheless,
appreciate those comments and return them doublefold. I thank him.
S8000 Mr. HANSEN. Mr. President, I thank my good friend from Louisiana.
S8000 Let me say by way of introduction, Mr. President, that I think it would be inappropriate to
begin the consideration of this extremely important piece of legislation without first paying my
respects to the distinguished chairman of the subcommittee that has been handling this legislation,
the senior Senator from Montana, Senator METCALF. I know that Senator JOHNSTON joins with
me in saying that those of us on the Energy and Natural Resources Committee are privileged to have
the dedicated leadership, ability, willingness to listen, patience, and deep understanding that so
characterizes LEE METCALF. He is a person who has grown up in the West. He has been
educated in the West, and he has served in many capacities for western people and for the people of
the United States. I wanted to say before we get bogged down into a consideration of amendments
how grateful I am to him for his leadership and for his understanding and comprehension.
S8000 Now, to speak specifically to the amendment that is offered by the distinguished Senator
from Louisiana, let me say that as he began his remarks he said that the amendment which was
adopted by the Energy and Natural Resources Committee - I am not certain what vote the language
in the bill was adopted by: I have forgotten what the final vote was. We reported out the language.
But Senator JOHNSTON'S amendment, the same amendment he now offers, was rejected, Mr.
President. I make this point: It was rejected by a vote of either 11 to 3 or 10 to 4.
S8000 I think it is important that Senators understand that we discussed this issue at length. I
have no illusions at all about the ability of Members of the Senate here this afternoon, if we were to
spend the entire afternoon on it, to even begin to achieve the degree of comprehension on this
specific issue that I can say advisedly the members of the Energy and Natural Resources Committee
had before we finally voted on and rejected, as we did overwhelmingly, the Johnston amendment.
S8000 Yesterday we took up the President's energy proposal. It was a very complicated piece of
legislation. In some remarks that I offered just before we took the final vote, I observed that I had
concern because I did not know what was in the package. There were many unresolved issues that I
thought we should have had a better handle on than we did. There were many things that I felt
Senators, if not yesterday certainly in the future, will be called upon to answer, and to justify to their
constituents why they voted or positioned themselves as they did on the different issues.
S8000 I make that point becuse in voting against the pssage of the bill yesterday which I did
reluctantly, after first having paid full respects to President Carter and to the dedicated members of
the Government Operations Committee for the work they had done, I observed that it seemed to me
that we just did not have time enough, compressed into the time frame that we were placed in
yesterday afternoon, to start to uncerstand what all was in the energy package.
S8000 I say that because I am fearful that Senators may find themselves in the same situation this
afternoon. This is a difficult and a complicated measure. It is extremely complex to understand
what is involved in an issue of surface owner consent.
S8000 After the Government started reserving materials for retention by the Federal Government
of the Government's ownership in those minerals, it was concluded that the Government might sell
just the surface of the public lands, or offer for sale or homestead the surface of the public lands,
mostly in the West, to homesteaders, affording them an opportunity to take up more land than they
had been afforded earlier, but resrving the minerals, with the idea that the minerals could and indeed
would become more important. Of course, the wisdom of Congress was prohpetic insofar as that
point was concerned, but less understood and less appreciated was the fact. I submit, that no one in
Congress at that time could possibly have contemplated the kind of surface mining operations that
exist in Montana, Wyoming, and other Western States today. It is not a case of digging a mine shaft
and going underground with little disruption of the surface, as legislators back at the time these
withdrawals or reservations were made would have contemplted. There was no reason on earth for
anyone to have imagined the massive, enormous pieces of equipment that would be brought on the
scene today. Nor could anyone, I submit, possibly have assumed that an ongoing surface mining
operation could disrupt the surface owner's entire operation and management of those lands for
several decades.
S8000 So when we are talking about the rights that would be reserved to the surface owners by
the language presently in this bill as reported out by the Energy and Natural Resources Committee,
let us keep in mind that the issue is not a position or a concern that was resolved back many years
ago when the Government started reserving these minerals, but rather the development and the
evolution of a mining process, which casts an entirely different light upon the issue than we had at
that time.
S8000 I say that because the owners of the surface know only too well that when a permit is
granted by the Government of the United States and a development plan is approved, and a coal
company moves in, for all intents and purposes the owner of the land had just as well kiss it
good-bye. It does not matter; it is of little satisfaction to him to remember that maybe 40 years from
now, if his children are still alive, they will have that land back. As far as he is concerned, he has
had the land taken from him. And it does not matter how long or how far back those ties go, he is
indeed being effectively separated from the ownership and control of the land.
S8000 The Senator from Louisiana says, according to his figures, that this could amount to $1
,600,000 per section. I divide that amount of money by 640, which is the number of acres in a
section of ground, and if my mathematics is correct, it comes to $2,500 an acre.
S8000 Many people would say that is a lot of money. But I was watching, just here 2 weeks ago,
a part of the Today show, showing what was happening in Illinois, a State that has a lot of coal. I
noted there that one of the farmers whose ranch or farm was prominently displayed in that program
observed that his land was worth about $6,000 an acre - not the $2 ,500 that Senator JOHNSTON
says these Wyoming and Montana ranchers and farmers would "rip off the Federal Government."
Not that $2,500, but $6 ,000 an acre. That is what this farmer in Illinois said his land was worth on
today's market.
S8000 Senator JOHNSTON says that this language in the bill would either lock these coal
reserves up or result in their being sold by the surface owner, when he really has no right to it at all.
S8000 Mr. JOHNSTON. Mr. President, will the Senator yield?
S8000 Mr. HANSEN. Be happy to.
S8000 Mr. JOHNSTON. I wanted to clarify that what I was quoting from was a Rocky
Mountain Mineral Law Institute paper, which I think the Senator from Wyoming has used in
connection with his amendment. But the figure that they used was $25,000 an acre, not $2 ,500,
and that is based on a current royalty rate of 50 cents per ton.
S8000 Mr. HANSEN. I thought the Senator quoted 5 cents a ton and 50 cents a ton both. Which
figure was he using?
S8000 Mr. JOHNSTON. Let me read it if I may. The coal is owned by -
S8000 Mr. HANSEN. I was just taking the Senator's statement. Is it not true that he spoke about
5 cents a ton, and 50 cents a ton later?
S8000 Mr. JOHNSTON. I used both figures, and the article uses both. It said at the current
royalty rate of 50 cents a ton, it would amount to $2 5,000 an acre, or if you assumed 5 cents a ton,
and I do not know where they got the 5 cents a ton, it would amount to $2 ,500 an acre. So, just
quoting from that article, which I think was the Senator's authority in earlier speeches on this matter,
it would be $25,000 using the current rate of 50 cents per ton, or $2 ,500 using one-tenth of that
rate.
{S8001} I have some other examples I can give later when I get the floor as to what I think the
real cost per acre to the people might be.
S8001 Mr. HANSEN. Mr. President, let me say these figures are pretty deceptive. If we were to
apply the same criteria that Senator JOHNSTON is now proposing we consider in trying to
determine the fairness and equity, which I think are both on our side, in the language in this present
bill, I would say to my good friend from Louisiana, figure out for me how much the people of the
United States are going to pay per acre for the oil or gas developed in Louisiana. If he will figure
that out per acre, I would be interested.
S8001 I will say, in answering that question he would have rather considerable latitude because it
depends on how much oil and gas they will get out of an acre of gas, obviously. I think I can
anticipate maybe one of the answers my good friend from Louisiana might give. He would say,
"First, let us decide how much is going to come out."
S8001 Mr. JOHNSTON. If the Senator will yield, the Government would not pay 1 cent on oil
which is owned by the United States. That is what we are talking about. Here we are talking about
coal which is owned by the United States, and we are talking about oil on the OCS, I believe, which
is owned by the United States. There we get nothing and here we are talking about figures of $10
million an acre or whatever.
S8001 I can give the justification for that figure of $10 million an acre if the Senator would like
to have it.
S8001 Mr. HANSEN. What I would like the Senator to do is to speak as long as he wants and
make whatever case he believes will best support his position. Then I would like to mke a statement,
if I may. I yield to the Senator for that purpose.
S8001 Mr. JOHNSTON. I apologize to my friend from Wyoming for interrupting his train of
thought. I just wanted to clear up that point, since I believe he did ask a question about how much
was made on an acre of oil in Louisiana. As I say private owners do not receive anything on
Government-owned oil in Louisiana. They are not entitled to anything. I am not making any claim
for anything. But I am saying that where the Government owns the coal in Wyoming, the same rule
ought to apply. The Government ought to receive whatever that figure is, whether it is $10 million
for a 40-acre tract or whether it is $1 million. The Government ought to receive that and not the
private landowner. Under my amendment the private landowner is being very generously
recompensed.
S8001 Would the Senator concede that under my amendment the surface owner is being given
more than the law presently allows? Will the Senator concede that much?
S8001 Mr. HANSEN. No, I will not concede that.
S8001 Mr. JOHNSTON. Would the Senator prefer to have that compensation determined by the
present law?
S8001 Mr. HANSEN.I believe the Senator from Louisiana is asking rhetorical questions. He
knows perfectly well what the Senator from Wyoming would esire and what a majority of the
members of the Energy and Natural Resources Committee all agree is fair and equitable. That is
that the surface owner consent provision in the present bill addresses those issues and resolves them
in a fair, equitable, and satisfactory manner. So my response is that if the Senator wants to know
what I think, read what is in the bill, the position of 10 or 11 members who were present and voting.
S8001 Mr. JOHNSTON. If the Senator will recall, at the time of that vote a number of Senators
were not present. It was voted by proxy. We are sure the vote was overwhelming, 10 to 4 or 11 to
3, whatever it is.
S8001 Mr. HANSEN. If the Senator will yield on that point, I am sorry my good friend from
Louisiana must feel so hardpressed in trying to defend his position that he would seek to impugn the
vaidity of those proxies. I suspect taht every one of those persons will be present this afternoon, if
there is any doubt in the mind of the Senator. I believe the RECORD will pretty well disclose that
the proxies which have been voted since I have been a member of that committee have been far
greater in number on his side of the aisle.
S8001 I have never once questioned the authority of Senator JACKSON, Senator JOHNSTON,
or any other Senator to cast proxies. I am sorry the Senator from Louisiana would impugn my
fairness and my honesty in casting proxies on this issue.
S8001 I can say to him that I believe those persons whose proxies I cast, if they are in town and if
they are here this afternoon, will be glad to appear on this floor to assure my good friend from
Louisiana that I did indeed vote their proxies fairly and honestly. If there is any doubt about that,
would the Senator from Louisiana so indicate to me now?
S8001 Mr. METCLALF. Will the Senator yield?
S8001 Mr. HANSEN. I will be happy to.
S8001 Mr. JOHNSTON. May I answer the question first? I want to clear this up. First of all, I
believe the Senator knows I would never impugn his honesty, his fairness, his accuracy, indeed his
authority to cst proxies. We are not dealing with that.
S8001 Mr. HANSEN. It was the Senator who raised the issue.
S8001 Mr. JOHNSTON. The reason I raised the issue was because a number of proxies were
cast, at least on our side of the aisle, by members who told me they did not understand the issue.
They would have voted differently had they been there. Indeed, at least one of those is a coauthor of
this amendment.
S8001 I understand the proxy system. I vote proxies both as the proxy and the "proxor."
[Laughter.]
S8001 I can say that occasionally Senators vote proxies and have proxies voted for them when
they do not understand the issue.I am just saying I think this is one of those issues. I do not know
where the majority of the committee would go. I hope the majorty of the Senate recognizes the issue
for what it is.
S8001 The Senator says we should discuss this for a long time. That is fine with me. Frankly, I
believe time is on my side. We do not have many Senators present to listen to this debate, but if we
can keep this going for a while, word will trickle back to the offices. The able aides who do cover
the floor action will find out what the very simple issue is. Tht simple issue is whether a private
person can sell the Government's coal or lock up the Government's coal.
S8001 Those may be majority terms but that is precisely what it does.
S8001 Let me give an assumption -
S8001 Mr. METCALF. Before the Senator goes into some other subject, I would like to address
myself to this charge about proxies, if the Senator from Wyoming will yield.
S8001 Mr. HANSEN. I am not sure who has the floor. I thought I did.
S8001 Mr. METCALF. I thought the Senator did, too.
S8001 Mr. HANSEN. If I do not, address the request to our good friend from Louiisiana. If I
have the floor, I will be happy to yield to the chairman.
S8001 The PRESIDING OFFICER. The Senator from Louisiana has the floor.
S8001 Mr. METCALF.Where did he get the floor, Mr. President?
S8001 Mr. JOHNSTON. Let me keep it long enough -
S8001 The PRESIDING OFFICER. A Senator cannot maintain the floor when he remains
seated.
S8001 Mr. METCALF. Will the Senator from Louisiana yield to me for a moment?
S8001 Mr. JOHNSTON. Certainly. I will yield the floor. But first, let me say -
S8001 Mr. METCALF. I want the Senator to go ahead with his other developemnts, but I want
to talk for jsut a moment about proxies.
S8001 Mr. JOHNSTON. Before I yield the floor, on the subject of proxies I want to make clear
there is no charge of anybody doing anything wrong on proxies. I am saying that at the time we
voted, a lot of proxies were voted. I do not think they were fully understood. Some Senators have
told me that. That is all.
S8001 Mr. METCALF. I want to say to the Senator from Louisiana that I voted many proxies
during the course and development of this debate.Sometimes I refrained from voting proxies because
I was not sure, as the Senator from Louisiana very well knows, how the Senators who gave me the
proxies would have wanted them voted. But on this subject, this is a matter, as the Senator from
Louisiana has suggested, that we spent hours and hours on in conference. We spent hours in
discussion. Every Senator knows just exactly what the issues are, every Senator who is a member of
the committee. I voted those proxies as I was instructed and informed that I should vote from the
Senators who left them with me. I make no apology about it.
S8001 I am going to speak a little later on this very subject matter, if I can get the floor.
{S8002} I say to the Senator from Louisiana that I carefully refrained, as we were discussing the
bill, from voting anybody's proxy on any matter on which I was not sure of the position that the
Senator would take.
S8002 Mr. JOHNSTON. I state to my friend from Montana that I have never charged, I want to
make clear that I have never charged otherwise. I think the Senator from Montana, first of all, is the
soul of fairness and equity and integrity. Moreover, he is a pleasant and able chairman under which
to serve. When this bill becomes law, which I am confident it will, it will be, to a large extent - to the
principal extent - because of the efforts of the Senator from Montana. I want to make that very
clear. I am just charging that there are some people who did not know precisely what the issue is.
Maybe they had just not heard my argument. That is what I would like to say.
S8002 Mr. HASKELL. Will the Senator yield without losing his right to the floor?
S8002 Mr. JOHNSTON. Yes, I yield to the Senator from Colorado.
S8002 Mr. HASKELL. Mr. President, first, on the proxy issue, I am sure that the Senator from
Indiana would not have indicated in any way that the Senator from Montana or the Senator from
Wyoming would vote proxies contrary to the giver's views. We on the committee all have the
utmost respect for the Senator from Wyoming and the Senator from Montana. I should like briefly,
Mr. President, to state my views on this matter.
S8002 In certain parts of the country, private individuals own the surface and the United States
owns the minerals underneath. Those minerals, at least in my view, are the people's minerals. They
are owned by people who live in Denver, Colo.; in Houston, Tex.; in Los Angeles, and in Billings,
Mont., as well as the fortunate few who may own the surface. My understanding of the bill or the
committee amendments - whichever they are - the bill presented to the Senate - is as follows: that
where you have a split ownership - the Government owning the minerals and an individual owning
the surface, who otherwise qualifies - that is, has owned the surface for a certain length of time - that
individual may refuse access to the Government for it to get at its minerals. With that ability to
refuse access, there is implied the right to give access for a price.
S8002 In other words, if I should happen to own the surface, and if I have lived there - I think it is
3 years - I could say to a potential lessee, who is, for purposes of this illustration, the U.S.
Government - "Yes, you can come on; you can get your minerals, you can get your coal; but I am
going to charge you a certain price." The price, of course, would be dependent upon the richness of
the minerals underlying my land.
S8002 In that way, by a fortuitous set of circumstances, I can become a multimillionaire. Not
that that would not be nice, but I do not think I should become a multimillionaire by the
happenstance of ownership.
S8002 The amendment of the Senator from Louisiana, if I understand it correctly, would say, "All
right, Government, you can come on HASKELL'S land, but you have to pay HASKELL the
damages which he incurs as a result of your coming on his land." And since the bill requires that the
land be restored - because the basis of the bill is that if you cannot restore, you cannot mine - the
result would be that I would be made whole for the damages that I would incur by loss of use of the
land during the mining operation. But I would get my land back, and I would get it back whole. So
I would be made whole.
S8002 Mr. WALLOP. Will the Senator yield on that point?
S8002 Mr. HASKELL. Not right now, but in just a minute, I say to the Senator from Wyoming.
S8002 If my understanding is correct, the amendment of the Senator from Louisiana basically is
the compromise which we worked out 2 years ago, I think - is that correct, I ask the Senator from
Louisiana? Was that 2 or 3 years ago?
S8002 Mr. JOHNSTON. Would the Senator repeat the question, please?
S8002 Mr. HASKELL. As I understand the amendment of the Senator from Louisiana, it reflects
the compromise we worked out in conference committee, or substantially that compromise, which
we worked out 2 or 3 years ago, was it?
S8002 Mr. JOHNSTON. It is a variation on the theme that we had a couple of years ago. The
basis of it is that it treats the surface owner a little bit more generously than we would if we left him
under present law; nevertheless, we do not aldow him to sell the Government's coal.
S8002 Mr. HASKELL. That is what I thought.We worked for - I do not know how long it was.
The Senator from Louisiana, the Senator from Montana, and the Senator from Wyoming were on
the conference committee. We worked to get this compromise over a period of weeks. I personally
think it is fair.
S8002 This really ends my presentation.I am glad to yield to the distinguished Senator from
Wyoming.
S8002 Mr. HANSEN. If the Senator from Wyoming, my very good colleague and greatly prized
friend, will yield, I wish to make one observation.
S8002 I may be interesting to Senator JOHNSTON and Senator HASKELL to know that this
particular vote on the Johnston amendment occurred with no proxies being cast. It was a vote of 11
to 3. I have just had the record checked. There were no proxies cast in that 14-vote case there.
There were 11 votes against the Johnston amendment, and there were 3 for it. So I think it is really
rather academic to argue further about the proxy situation.I am glad we obtained that information to
refresh Senators minds.
S8002 I observe, Mr. President, that this issue was voted upon by persons present and voting.
The Johnston amendment having followed long hours of debate, I think I can say with certainty that
a clearer understanding of the issues being held in the minds of those persons who voted than we
could possibly hope to bring about here this afternoon resulted in a rejection of the Johnston
amendment by a vote of 11 to 3.
S8002 I thank my friend from Wyoming for yielding.
S8002 Mr. HASKELL. May I make one observation to the senior Senator from Wyoming?
S8002 Mr. WALLOP. By all means.
S8002 Mr. HASKELL. Maybe some of those people have changed their minds because, after all,
they are older now and, as they get older, they get wiser.
S8002 The PRESIDING OFFICER. The junior Senator from Wyoming is recognized to respond
to the Senator from Colorado.
S8002 Does the Senator from Colorado have the floor?
S8002 Mr. HASKELL. I yielded to the Senator from Wyoming for a question and I am yielding
for that purpose. If he wants the floor, the Senator from Louisiana has the floor.
S8002 If the Senator from Wyoming wants to ask a question, I yield to him for that purpose.
S8002 Mr. WALLOP. I would like to ask a question and maks an observation.
S8002 I also take the opportunity to ask unanimous consent that Mr. Rob Wallace and Mr. Bob
Jerome of my staff may have the privillege of the floor.
S8002 The PRESIDING OFFICER. Without objection, it is so ordered.
S8002 Mr. WALLOP. With regard to the questions raised by the Senator from Colorado, in
which he has made the statement that the surface holder would be made whole, there are many of us
who have fought these battles for a long time, at the State level and at other levels, who question
how whole in those lands anybody can ever be amde, regardless of the findings that will be made
prior to mining. The product you get back will not be the product you gave up. It will be a
synthetic creation of machines, men, possibly irrigation. But nobody will know for 20, 30, 3r 40
years, despite the best judges around, whether this is really going to be something that makes you
whole.
S8002 On top of that, during the course of mining on such an enormous extent as is going to take
place in those western surface mining fields - we are talking here, and will be a little bit later, about
alluvial valleys and those kinds of things - a ranching operation gets split in half. It is not
economically pursuable any longer. You cannot make somebody whole, and you cannot really
compensate them for that length of time.
S8002 That was the reason, I am convinced, that no mention was ever made of it when they held
these reservations in the first place, when the Government reserved the coal. Nobody knew about
strip mining. Nobody ever contemplated the enormous shovels and other things that exist now.
S8002 Nobody ever could have imagined the extent to which technology has made us capable of
disrupting the surface of the Earth.
S8002 Those reservations were for holes and mine mouths and tipples, but they were not for vast
acreages; they were never mentioned.
S8002 None of the language in any of the legislative proceedings of the U.S. Congress even
remotely recognizes the possibility of surface entry on this kind of scale.So I do not think somebody
can be made whole or have other comments later.
{S8003} In the remarks addressed to the distinguished Senator from Colorado, on that one point
alone, and there are other points I would care to make before this argument is finished, but on that
one point alone. I do not think anybody in this body can claim to make somebody whole to the
extent that the amendment of the distinguished Senator from Louisiana would contemplate.
S8003 Mr. HASKELL. Just 1 minute, if I may.
S8003 Mr. President, in response to the remarks of the Senator from Wyoming the whole
underpinning of the bill is that if we cannot restore, we cannot mine.
S8003 Specifically, as I read the Senator from Louisiana's amendment, among the elements of
damage which would be awarded ahead of time, incidentally, to the owner of the surface, it reads,
and this is on page 4:
S8003 Any other damage to the surface caused or reasonably anticipated to be caused by the
surface mining and reclamation operation.
S8003 I certainly remember the debate years ago. It was well pointed out that surface mining on
some portion of a man's land might interrupt his entire economic operation - which was the
distinguished Senator's point. This disruption of the economic operation is intended to be an element
of damage, at least, as I understand it - and I would like a comment from the Senator from Louisiana
- as an element of damage which would be awarded to the surface owner.
S8003 Could the Senator from Louisiana comment?
S8003 Mr. JOHNSTON. I think the Senator from Colorado makes an excellent point. This
amendment is designed and does very specifically give that owner every element of damage, plus it
gives him 2 years' income.
S8003 Now, if the Senator from Wyoming could point out to me in this amendment, and I hope
he will read the amendment carefully, what kinds of damage specifically are not covered by this
amendment, then I would be glad to amend it and include the elements of damage.
S8003 Mr. WALLOP. May I attempt to answer?
S8003 Mr. JOHNSTON. Certainly.
S8003 The PRESIDING OFFICER. The Senator from Louistana has the floor.
S8003 Mr. JOHNSTON. I yielded for a question.
S8003 Mr. WALLOP. First of all, it speaks of damages that can be reasonably supposed. It does
not have any review process of that damage that might be far in excess of the damage that has been
reasonably supposed.
S8003 Mr. JOHNSTON. If the Senator will yield, I will give the answer.
S8003 If the Senator will look at subsection (f), first, it provides for appratsal whereby the owner
will appoint an appraiser and the Government will appoint an appraiser, and those two will appoint
a third.
S8003 If the owner does not like that appraiser, he can go to court, as in subsection (f), that whole
procedure is set out.
S8003 So he can go to court if he is not satisfied with the appraisal.
S8003 Mr. WALLOP. But most of this is a relatively new process. A great deal of it will not be
reasonably forecastable.
S8003 Mr. JOHNSTON. What was that?
S8003 Mr. WALLOP. Forecastable, or reasonably supposed.
S8003 Nobody will know how these kind of things take place, and there is no reentry.
S8003 Mr. JOHNSTON. What was that?
S8003 Mr. WALLOP. Reentry into the proceedings.
S8003 We get the findings. There is no reentry provision. So 10 years doen the road we find
there are things far in excess of what was reasonably supposed.
S8003 Mr. JOHNSTON. That can cut both ways. He can also get far in excess of what his
actual losses were.
S8003 There has to be some time for an end to litigation, and we provide an appraisal process for
people in the area to do the appraisal. If they do not like it, they go to a court located in the area.
S8003 That seems to be reasonable due process and the best kind of superstructure we could put
together protecting those rights.
S8003 I wonder if the Senator can point out any element of damage, any element whatsoever, that
is not covered under this amendment.
S8003 Mr. WALLOP. Yes. I could point out one that has not been contemplated at any level, in
the discussions I have read in the hearing record, or anything else. That is the tax law this very
Congress passed last year in which we sought to make it possible for rural people, agricultural
people, to stay in agriculture, by giving them an exemption, an agricultural exemption in inheritance
taxes.
S8003 One of the requirements of that exemption is that the property be kept in agricultural
production for 15 years.
S8003 Suppose my good friend from Louisiana takes the role as the father of my friend from
Wyoming and he dies and leaves this property to my friend from Wyoming, his son.
S8003 His son takes the agricultural exemption, up to $5 0,000 worth of it, and then along comes
the distinguished Senator from Colorado who holds the coal lease under that and says, "I come to
claim my coal."
S8003 Now, this man is in terrible shape and that is not a forecastable event.
S8003 All during this time a set of taxes nobody even contemplated becomes triggered by this
several interest that exists primarily in the West.
S8003 Mr. JOHNSTON. Is that the only element that the Senator can refer to?
S8003 Mr. WALLOP. No I do not think anyone has the scientific technological ability to really
forecast damages there; there is no reentry provided and we have to get one. I have seen the results
of this. I have watched it. It is quite a fact that we sit here in our wisdon and say we have a surface
reclamation bill which requires that if we cannot restore it, we cannot mine it. But I think we will
find down the road that many of these things we thought we could do, we are not really so capable of
doing, as we sit here in comfort and contemplate today.
S8003 Mr. JOHNSTON. If I may make a comment, that situation adheres in both the bill as
proffered by my friend from Montana and my friend from Wyoming and under my amendment.
S8003 In other words, my amendment does not exaggerate the difficulties of trying to forecast
what the damages will be in the future.That is inherent in the bill as presently written.
S8003 Mr. WALLOP. I recognize that, but it is inherent in the injustices which I see in the
amendment of the distinguished Senator from Louisiana because it is an impossible thing. It is
better to let these people get together and, hopefully, keep this land in some agriculture owner's
hands.
S8003 The product returned to the "owner" is synthetic. There is nothing in this which can
prevent sale prior to the lease, and that is exactly what is going to happen.
S8003 In the Ruhr area of West Germany, the biggest single landowner is no longer small
farmers; it is coal companies. This amendment would have the effect of forcing people to leave
small agricultural holdings and put agricultural holdings and most agricultural land in the hands of
coal companies. It would actually do that. I realize the distinguished Senator from Louisiana thinks
he is going to be keeping people on the land with this but, as a matter of fact, it will be exactly the
opposite.
S8003 Mr. BUMPERS. Will the Senator yield?
S8003 Mr. JOHNSTON. I yield to my friend from Arkansas.
S8003 Mr. BUMPERS. Mr. President, I was not here for the opening of the debate, so I may be
covering ground that has already been covered. But I am curious as to whether or not some of my
colleagues in this body understand the implications of what this bill contains without this
amendment.
S8003 Let me give some statistics.
S8003 Twenty-nine percent of all the mineral acres in Montana, Wyoming, and North Dakota is
owned by the U.S. Government. That ownership represents 60 percent of all the coal under that 29
percent of the Federal ownership.
S8003 What we are saying is that the owners of the surface can thwart the mining of 60 percent of
the coal in those three States. We are talking about more than 100 billion tons of coal - 96 billion
tons of coal, to be precise - that cannot be mined unless the surface owner gives his consent.
S8003 The President has declared war on energy, and we come in here with a bill which is
designed to an absolute certainty to prohibit our being able to cope with it.
S8003 Let me ask the Senator a couple of questions and make a couple of points.
S8003 No. 1, the Secretary of the Interior prescribes a tract of land to be leased, and that land has
coal under it. Let us assume that the tract consists of a thousand acres, and in the middle of that
thousand-acre tract, the surface of a 500-acre tract is owned by one man.
S8003 That means one thing: That tract will not be mined, simply because anybody who is going
to make the investment necessary to mine it will not do it for less than 1,000 acres.
{S8004} Assume that the Secretary has set this 1,000-acre tract out as an economically viable
tract of land to mine, and the Federal Government owns all the minerals under the entire 1,000
acres, but in the middle of that tract, it does not own the surface of half of it, or 500 acres; or, cut
that to 200 acres. To make it a little more interesting, just spot a few 40-acre tracts around in it,
where the surface is owned by some individual.
S8004 That means that unless the lessee, the coal company that wants to become involved in
mining that coal, can get the consent of the surface owners, that coal is not going to be mined.
S8004 No. 2, what kind of leverage does this give that surface owner in demanding damages from
the lessee before the lessee can operate the tract? It is a leverage that is unheard of in the common
law or the codified law of any State in this country.
S8004 I ask either Senator or both Senators from Wyoming, what are the damages provided by
the laws of Wyoming where an individual owns the surface and somebody else owns the minerals? I
can tell the Senators what it says in my State. It says that the surface owner will be compensated for
the difference between the value of the land before it was mined and the value immediately after it is
mined.
S8004 The Senator from Louisiana, the Senator from Colorado, and I drafted this amendment and
have gone not an extra mile but an extra half-dozen miles in trying to accommodate the so-called
poor farmer who is going to be chased off his land. We have provided that he gets not only the
difference between the before and after value but also 2 years loss of profits. He gets all the
expenses he may incur for being relocated and any other damages he possibly can incur.
S8004 No. 3, what happens after the U.S. Government or the lessee pays him all of that? The
lessee must reclaim the land, in accordance with this bill, put it back in its approximate original
contour, with the surface back on top the way he found it, and then given the land back to the
surface owner.
S8004 We are not talking about a few tracts of land. We are talking about 60 percent of the
lowest sulfur content, finest grade of coal in the United States.
S8004 I respect the people of Wyoming and I respect their delegation in this body, but that coal
does not belong to one citizen. It was reserved by some farsighted people in this country when the
land was sold. Whoever owns that surface right bought it with full knowledge that the United States
owned the coal and had the right to mine it at any time in the future that it desired to do so.
S8004 Mr. WALLOP. Mr. President, will the Senator yield?
S8004 Mr. BUMPERS. I yield for a question.
S8004 Mr. WALLOP. I should like to anwser the question that the Senator from Arkansas posed
to the Senator from Washington.
S8004 Our State has recognized this dilemma and has come down in favor of the landowner's
consent in almost exactly the language of the Senator's proposal. This it does with the State's coal,
and this it does with private coal where the surface and mineral interests have been severed.
S8004 However, I think the Senator is making a mistake in talking about one person locking up
all this coal. It just has not worked that way. We in Wyoming have been operating with exactly this
kind of principle, while Congress has fiddled back and forth in passing a bill, and it has not locked
up any coal in Wyoming.
S8004 Wyoming had the law that was recognized - the first in the country - as being in excess of
those regulations promulgated by the Department of the Interior. It is just not going to lock up coal.
S8004 Mr. HANSEN. Mr. President, if the Senator will yield further, I should like to make one
point.
S8004 Mr. BUMPERS. Let the Senator from Louisiana respond, if he will. I yield to him to
respond to the distinguished Senator from Wyoming.
S8004 Mr. JOHNSTON. Mr. President, my friend from Wyoming says that, at present, the
surface owners are not holding up the Government, that they are not locking up the coal. The reason
for that is that the law now does not allow them to do so.
S8004 I quote from the present law, which is 43 United States Code, section 299. It reads:
S8004 All entries made and patents issued under the provisions of sections 201 to 301 of this title
-
S8004 Those are the homesteading provisions whereby an owner can go in and get 640 acres of
the surface.
S8004 - shall be subject to and contain a reservation to the United States of all the coal and other
minerals and the lands so entered and patented, together with the right to prospect for, mine and
remove the same.
S8004 I will not read the remainder, but it goes into some detail, stating what his rights to
damages are, which is much more limited than under our amendment, and what the rights of the
Government, or the Government's lessee are to go in and occupy the surface and remove the coal.
That is what the present law is. The present law provides for no lockup and no compensation to that
owner.
S8004 It is true that some owners are getting more by giving their consent, but the only reason for
that is that the coal is so tremendouly valuable that these coal companies want to make darn sure
that Congress does not take a step such as is proposed to be taken in this bill, whereby they are given
the right to lock it up. That is why they are able to get a thousand dollars an acre, or whatever it is.
S8004 Believe me, if this amendment is adopted, one never will be able to buy an acre of that
prime coal land for a thousand dollars. It will be more on the order of $25,000 to $4 0,000 an acre;
or, for one of these homesteaded 640-acre tracts that are allowed for homesteading under the
provisions I referred to, it will be $900 million.
S8004 Mr. BUMPERS. Mr. President, I yield to the Senator from Wyoming for a question.
S8004 Mr. HANSEN. I thank the Senator from Arkansas.
S8004 I think the Senator from Arkansas inadvertently may have overstated the situation in the
West.
S8004 It is my understanding that 60 percent of the coal in the area that my friend from Arkansas
described is Federal coal. The point I make is, however, that the Federal Government owns the
surface with respect to about half of that coal, roughly.
S8004 Mr. BUMPERS. The Senator is correct. If I said something that reflected otherwise, I will
correct the RECORD, because the Senator is correct.
S8004 Mr. HANSEN.Actually what I am trying to say is only half of that amount of coal is coal
owned by the Federal Government with the surface in private ownership. I think it is an important
point.
S8004 Mr. BUMPERS. It is an important point. But I believe the Senator will agree with me
that 96 billion tons of coal are under divided ownership between surface and minerals.
S8004 Mr. HANSEN. Did the Senator say 96 billion?
S8004 Mr. BUMPERS. Yes, 96 billion tons.
S8004 Mr. President, if I may make a couple of other observations; In the Decker-Birney area in
Montana there was an evaluation made of about 900,000 acres of federally owned land and
minerals. In some of this area they own the minerals, and in other areas, they own the minerals and
the surface. But that 900,000 acres - which is just one area in Montana - has 15.9 billion tons of
recoverable and mineable coal. Now, on today's market of it the value of coal is $20 a ton that
would be $3 0 billion worth of coal.
S8004 Mr. HANSEN. Mr. President, if the Senator will yield, let me see if I am figuring the
same way he is. He talked about 15.9 billion tons at $20 a ton, would that not be $3 00 billion
instead of $30 billion?
S8004 Mr. BUMPERS. I stand corrected.
S8004 Mr. HANSEN. The Senator has trouble with his mathematics.I often do, too, so I can be
sympathetic.
S8004 Mr. BUMPERS. Well, it is very assuring to have a mathematician on the floor to help me
because I am not very strong in mathematics.
S8004 Mr. HANSEN. The Senator needs it because his case is not strong. He needs a little help.
[Laughter.]
S8004 Mr. BUMPERS. Out of that 900,000 acres, the Federal Government owns both the
surface and minerals on about 79,000 acres of it or less than one-tenth of it.
S8004 Underlying those 79,000 acres are 1.4 billion tons. In other words, the Government can
go in and mine 1.4 billion tons of the 15.9 billion, and the other 14.5 billion may not be mined
without the surface owner's consent.
S8004 That is just a little dramatic illustration of what we are confronting here with this absurdity
of saying that the U.S. Government may not take what belongs to it without possible arbitrary and
capricious consent of somebody who happens to own the surface rights.
{S8005} I wanted to make another point that I started on a moment ago, and I mena this with all
respect in the world to the people of Wyoming, Montana, South Dakota, and North Carolina.But
that coal was reserved by the United States for a very specific purpose, and that purpose was for the
good and for the benefit of all of the people of this country. That includes the people in Louisiana,
who have been sharing their oil with the rest of the Nation; that includes the people in my State; it
includes the people of Illinois; it includes all of the people in the United States.
S8005 To allow surface owners to have the kind of leverage they are going to have in this
impending energy crisis, which the Senator from Louisiana has described even more graphically
than I did, could only be classified as an outrage.
S8005 Let me make a point. What is some Hollywood star bought several thousand acres of
surface rights in Wyoming in the past 60 days. He is going to, whether he has speculated on it or
not, stand a chance to reap the biggest windfall profit that has ever been experienced in the history of
this country because he is not going to just recover the value of the surface, which is maybe all he
paid for, but he is going to hold somebody's feet to the fire for a big chunk of the value of that coal,
or they are not going to mine it.
S8005 Later on during this debate I intend to ask unanimous consent of the principal sponsor, the
Senator from Louisiana, to modify the amendment, to provide that anyone who does not meet all the
criteria of having lived on the land and received, not only a "significant part," but a majority of it
during the past 6 to 10 years can benefit from this amendment years can benefit from this
amendment in any manner. U.S. Congress at least since 1972. Anybody who wanted to start
speculating in 1972 by buying those surface rights is going to be in clover if this bill passes in its
present form.
S8005 I willnot go into that right now, but I certainly think anybody who has not lived on that
land and has not gotten a majority of his income from the surface of that land for the past 10 years
should not be handed this kind of a windfall.
S8005 Mr. HANSEN.Let me make several points. Let me go back to what the Genator from
Louisiana was talking about when he was speaking about oil. I would certainly agree it is not
comparable because when oil is produced on a person's land, a small area may be occupied. When a
ranch is strip mined it is going to be taken over sooner or later, and I am referring to all of the land
under which coal might be found.
S8005 If the situation in removing coal were comparable to the situation in removing oil, we
would not be here because that situation was not contemplated by the Congress of the United States
when the law was passed reserving these minerals to the ownership of the United States.
S8005 The second point I would like to make is that the Senator from Arkansas speaks about
15.9 billions of coal, and he is talking about that coal just in this particular part of the West.
S8005 I have great respect for all of my colleagues, and I have particular respect for the sagacity,
the wisdom, and the knowledge of the two proponents of this amendment, the Senator from
Arkansas (Mr. BUMPERS) and the Senator from Louisiana (Mr. JOHNSTON).
S8005 Let me say this: You know your neighbor may sell out for $5 00 an acre, and it does not
mean it is worth $5 00 an acre. There is an old axiom "Oil is where you find it and land is worht
what you can get for it."
S8005 Now, the trouble with this scare tactic we are hearing this afternoon, about these terrible
ripoffs that are going to result of this law, if this legislation becomes law, is simply this: The
Secretary of the Interior and the Secretary-designate of the Department of Energy, When it comes
into being, along with the President of the United States are hopeful that we may increase coal
production, that we may increase coal production in this country by slightly more than a million tons
a year.
S8005 Do you know how much we are at present producing? We are producing about 665
million tons. Figure out, if you will, divide 1.1 million tonds into 15.9 billion - I hope I might have
the attention of my friend from Arkansas because this was his point, and I did want him to hear it - I
would say to my friend from Arkansas, who is good with a sharp pencil, if we would divide 1.1
million tons into 15.9 billion tons he will find out there is going to be a lot of coal around for a long
time just in this part of the West.
S8005 If anybody thinks that a rancher or every rancher, every period who has ownership of the
surface and not of the coal, can write his own ticket for what he is going to receive if he gives his
consent to having his place taken over by a mining operation for several decades, he has got another
think coming because all you have to do is go down the road to the next place and say, "What would
you take to give owner consent for your operation here?" I will guarantee you when you compare
15.9 billion tons in just this small area ofd the West with 1.1 million tons that the Government hopes
we may be able to use by 1985, it becomes readily apparent that those prople out there on the land
now are going to be dead and gone and several generations following them will be dead and gone
before anybody is going back a second time and say to them, "What will you take in order to give us
surface owner consent today?"
S8005 The facts are that I took the figures that Senator JOHNSTON quoted. Let us assume that
the land to get surface owner consent would go for $2 ,500 an acre. I shall be very honest with the
Senator. I do not know of anyone who has gotten that much out there. I do not say it has not been
paid, but I do not know of anyone who has gotten that much. The top price about which I have
heard is $1,000 an acre. Let us take the $2 ,500 an acre to which Senator JOHNSTON alluded.
We have coal around the Gillette area that is found in seams 90 feet thick, and that is a lot of coal be
cause 1 acre of ground with coal under it 1 foot thick has about 1,750 tons, just that 1 foot thick
seam of coal. If you have coal 90 feet thick, if my mathematics are right, I figure that there would
be under an acre of ground out there to be found 157,500 tons of coal.
S8005 Mr. BUMPERS. Mr. President, will the Senator yield for a question?
S8005 Mr. HANSEN. No, I will not yield. I would be very happy to yield, but I am afraid it will
be a long spell between speeches. I wish to have a chance to finish this point. If the Senator has a
question, he may ask me.
S8005 Mr. BUMPERS. I have a question.
S8005 Mr. HANSEN.I yield for a question only.
S8005 Mr. BUMPERS. My question is: Will the Senator agree with me that developing and
mining of coal for any significant size operation requires a rather large contiguous area?Will the
Senator agree with that?
S8005 Mr. HANSEN. These are relative terms. When the Senator speaks about large - I will not
ask him a question. My response to his question is that "large" is a relative term. I think that if he
wants to find out what the average size of an operation is out there I suspect the most definitive
answer I know of could be found in the Bureau of Mines. I yielded for that question. I wish to
continue if I may.
S8005 Mr. BUMPERS. Will the Senator yield for only one additional short question?
S8005 Mr. HANSEN. I yield.
S8005 Mr. BUMPERS. We mentioned this area in Montana that contained 15.9 billion tons of
coal under 900,000 acres of federally owned land. That is federally owned minerals. Out of the
900,000 acres the Federal Government only owns the surface and the minerals under 79,000 acres.
It is under those 79,000 acres that 1.5 billion tons of coal is located. Will the Senator agree with me
that if the Federal Government ownership of that 79,000 acres is spotted around in various places
within that 900,000 acres, it would make the leasing of it vitually impossible?
S8005 Mr. HANSEN. I do not agree with the statement by the Senator from Arkansas.
S8005 To continue my statement about what we are talking here in terms of the value of this coal,
Senators should understand, as I was pointing out, Mr. President, that we have in the Gillette area
coal in seams 90 feet thick, and we have coal in seams 200 feet thick around the
Buffalo-Story-Sheridan areas. If the coal seams are only 90 feet thick, which is the case around
Gillette, under each one of those acres is found or contained 157,500 tons of coal.If the surface
owner were to receive $2 ,500 an acre, and my friend from Wyoming, Senator WALLOP, and I
know of no such price being paid out where; $1 ,000 is about the maximum I know of, and that is
where the coal company comes in and buys the man out. They do not buy the right to mine it; they
come and buy the whole ranch. They buy the whole ranch for about $1,000 per acre.
S8005 But let us say $2 ,500, which is 2 1/2 times as much as ranches have been selling for, as
far as I know, at that rate, the return that the surface owner would receive would be 1.6 cents per
ton. I ask some of my friends in the utility business, what does this mean in terms of extra charges
per kilowatt hour? And to take the figures that were suggested by my friend from Arkansas, if coal
is worth $2 0 a ton it is so infinitesimal that there would be no way to factor in less than 2 cents per
ton. So my point is it is not a ripoff. It makes the point that my colleague from Wyoming, Senator
WALLOP, made that if we believe there is virtue, strength, good wisdom, and defendable national
policy in keeping farms and ranches in family ownerships, there is, indeed, strong reason and
persuasive argument in support of the language contained in this bill. I think it makes sense to keep
it this way.
{S8006} } If we want to look at the alternatives, then precisely what has occurred in West
Germany will, indeed, obtain in Wyoming, Montana, and North Dakota. The coal companies will
be coming in and they will own the land, and they may not be quite as concerned with the quality of
reclamation that will be demanded as would have been required if we had kept that land in family
ownerships.
S8006 I am going to yield the floor to my good friend from Montana, a person with whom I have
worked closely because I know he has some points he wishes to make.
S8006 Mr. METCALF. I am grateful to the Senator from Wyoming. I think, by and large, the
debate that has gone on for an hour and a half, has been helpful. I wish to move on. We are going to
talk about alluvial valley floors, prime agricultural land, and some of these other questions.
S8006 One point has not been made, I say to Senator WALLOP, and that is that there are people
out in Montana and Wyoming who do not want to sell their ranch. They do not want to sell it for $2
0,000 an acre. They want to continue their ranching operations, and this provision will permit them
to do so.
S8006 Mr. WALLOP. The Senator is absolutely correct, and it was the reason that this came
about as a concept in the first place. It was not to provide windfalls but to provide protection. The
country will always have a lot of coal, and that is not going to go anywhere. There is plenty of time
to take care of that when it runs out, and the only things remaining are ranches to keep together.
S8006 Mr. METCALF. In 1973, we put in the so-called Mansfield amendment that said when
there is private surface ownership and Federal coal we will keep it in reserve. We will let these
people keep their surface ownership and the Federal Government will keep its coal under the land.
This year that provision ran into so much opposition from Pesident Carter's energy program that I
withdrew it. But, nevertheless, there are men and women out there is Montana and in Wyoming,
especially, third generation ranchers, who are not going to sell their ranch for any amount of money
to a coal company that is going to cut it apart for a 150-foot seam of coal.
S8006 Mr. WALLOP. The Senator brings in the single most important group of people affected
by this amendment, and I thank him.
S8006 Mr. METCALF. I wonder if Senator HANSEN and Senator JOHNSTON will agree that
we are going to wind this amendment up and move forward in consideration of this legislation.
S8006 Mr. JOHNSTON.I certainly have no desire to delay the matter. I have a few more words
to say, but not a great deal.
S8006 Mr. METCALF. I am not going to ask unanimous consent, but I really urge my colleague
to bring this to a vote and let us move on.
S8006 Mr. JOHNSTON. I think we are very close to winding it up unless there are others who
want to speak, and I imagine my colleague from Arkansas would wish to say some more on this
side, but I do not know of others who wish to speak for a long time.
S8006 Mr. METCALF. Senator SCHMITT has some comments to make. But I hope we will
move on.
S8006 Mr. SCHMITT. Mr. President, if the Senator will yield for a very brief comment, first of
all let me compliment Senator METCALF and Senator HANSEN for the work they have done on
this bill. I an am not yet convinced I am going to support the bill in its entirely. I think there are
some other problems. But in this particular area I have been involved in the mining business, or
close to it, for many years. As a matter of fact, I was born in the copper pit Santa Rita region of
New Mexico.
S8006 I just would say that the mining industry gets extremely clever when it runs into a
bottleneck in terms of a particular lease or section of land or acre that is not avaialble becuase of a
high price or some other circumstance.
S8006 I suspect that if we find that kind of problem developing, we will also find the industry, the
coal miners, working out ways in which they can circumvent the high price that is being asked, or
any other contingency that might develop.
S8006 I think even more important, however, is the total amount of public lands of which the
Government owns both the surface and the mineral rights.That area, particularly with respect to
coal, is so very, very large that, at this point in our national need, to pass an amendment such as that
proposed by the distinguished Senator from Louisiana, I think, is unnecessary and may well open up
some difficulties that we had just as well let alone.
S8006 The ranchers and the farmers who would like to keep their land, I think, should certainly
for the time being have the right to do that. Maybe at some future time, if it appears that a national
emergency is involved or something like that, we could look at this question again; but I would say
the time is premature for that issue at this time.
S8006 Mr. BUMPERS. Mr. President, a parliamentary inquiry.
S8006 The PRESIDING OFFICER (Mr. GRAVEL).The Senator will state it.
S8006 Mr. BUMPERS. Is the pending bill considered the original text, so that the pending
amendment is subject to an amendment?
S8006 The PRESIDING OFFICER. The committee amendment is an amendment in the nature
of a substitute, which does not kill a degree. So the pending amendment is in the first degree, and
obviously is available for an amendment in the second degree.
S8006 UP AMENDMENT NO. 249
S8006 Mr. BUMPERS. Mr. President, I send to the desk an amendment modifying the pending
amendment.
S8006 The PRESIDING OFFICER. The clerk will state the amendment.
S8006 The assistant legislative clerk read as follows:
S8006 The Senator from Arkansas (Mr. BUMPERS) proposes an unprinted amendment
numbered 249 to amendment No. 276:
S8006 On page 4 of the amendment No. 276, line 25, add the following subsection -
S8006 Mr. BUMPERS. Mr. President, I ask unanimous consent that further reading of the
amendment be dispensed with.
S8006 The PRESIDING OFFICER. Without objection, it is so ordered.
S8006 The amendment is as follows:
S8006 On page 4 of the amendment No. 276, line 25, add the following subsection:
S8006 (3) have met the conditions of paragraphs (1) and (2) for a period of at least six years prior
to the granting of the consent. In computing the six-year period the Secretary may include periods
during which title was owned by a relative of such persons by blood or marriage during which
period such relative would have met the requirements of this subsection.
S8006 On page 4 of the amendment, line 23 and 24, strike the words "signficant portion," and
insert in lieu thereof the word "majority."
S8006 Mr. BUMPERS.Mr. President, let me spend just about 60 seconds describing to my
colleagues what this amendment could do.
S8006 Under the pending bill, there is no provision that a surface owner must have lived on the
land for any period of time before he is entitled to all the privileges that the bill gives him.
S8006 This amendment to the pending amendment would provide that the surface owner must
have lived on the land for at least 6 years, and must have derived a majority of his income from that
land during that period of time.
S8006 Mr. HANSEN. Mr. President, will the Senator from Arkansas yield for a question?
S8006 Mr. BUMPERS. Certainly.
S8006 Mr. HANSEN. Is it not a fact that despite the statement by our colleague from Arkansas,
a movie star might come in and buy up a lot of land -
S8006 Mr. BUMPERS. I have nothing against movie stars; I just used that as an illustration.
S8006 Mr. METCALF. How about a Texas oil man?
S8006 Mr. BUMPERS.Make it an oil man; that might be better.
S8006 Mr. HANSEN. My point is, is it not a fact that the language in the committee vill
precisely excludes that sort of operator from coming in and doing what the Senator said he could do?
S8006 If the Senator will look on page 305 of the bill (S. 7), he will find this language;
{S} 8007 For the urpose of this section the term "surface owner" means the natural person or
persons (or corporation, the majority stock of which is held by a person or persons who meet the othe
requirements of this section) who -
S (1) hold legal or equitable title to the land surface;
S (2) have their principal place of residence on the land; or personally conduct farming or
ranching operations upon a farm or ranch unit to be affected by surface coal mining operations; or
receive directly a significant portion of their income, if any, from such farming or ranching
operations; and
S (3) have met the conditions of paragraph (1) and (2) for a period of at least three years prior to
the granting of the consent.
S My question is, have we not precluded, as my friend from Arkansas said, a Hollywood movie
star coming in and buying up land out there and taking windfall profits from it?
S Mr. BUMPERS. To answer the Senator's question, the word "significant" is always an
ambiguous term. I resist that term in committee and on this floor every time I see it, because it could
mean anything.
S The Senator will recall that yesterday morning, in the Energy Committee, we got into a debate
over whether or not someone had committed a significant amount of money to the development of an
offshore oil lease. I resisted it, and I resist it here.
S I assume if we are talking about someone whose income is a million dollars a year, and only $5
0,000 of it came from the surface of the property, that probably would not be considered a
significant amount. But $5 0,000 is indeed a significant amount of income to 99.9 percent of the
people of this country.
S To answer the Senator's question, I would say no, we have not addressed it, or, at least, not in a
manner that will prohibit people from speculating or having previously speculated.
S Finally, the bill provides for a 3-year period in which these things must have occurred. The
point I made in my original statement is that we have been debating strip mining since 1972. That is
now 5 years, and I am just suggesting 6 years to make sure that nobody, from the time we started
talking about surface mining, will have been able to benefit from speculating on the purchase of
surface rights in the far West.
S Mr. JOHNSTON. Mr. President, the choice of 3 years in my amendment was entirely arbitrary.
I think the Senator from Arkansas does make a point about the length of time that this matter has
been debated, and perhaps 6 years is a preferable length of time. If he feels that 6 years is a better
number of years, it is perfectly acceptable to me.
S Therefore, I move to amend my amendment to conform to the amendment of the Senator from
Arkansas.
S The PRESIDING OFFICER. The Senator has the right to modify his amendment, and it is so
modified.
S The amendment (No. 276), as modified, is as follows:
S On page 303, line 21, strike all of section 515 and insert in lieu thereof a new section 515 as
follows:
S SEC. 515. (a) The provisions and procedures specified in this section shall apply where coal
owned by the United States under land the surface rights to which are owned by a surface owner as
defined in this section is to be mined by methods other than underground ground mining techniques.
S (b) Any coal deposits subject to this section shall be offered for lease pursuant to section 2(a) of
the Mineral Leasing Act of 1920 (30 U.S.C. 201a), except that no award shall be made by any
method other than competitive bidding.
S (c) Prior to placing any deposit subject to this section in a leasing tract, the Secretary shall give
to any surface owner whose land is to be included in the proposed leasing tract actual written notice
of his intention to place such deposits under such land in a leasing tract.
S (d) The Secretary shall not approve any mining plan pursuant to this Act until the appraised
value of the surface owner's interest has been tendered in accordance with the provisions of
subsection (c). Upon such tender and upon approval of the mining plan, the lessee may enter and
commence mining operations whether or not the determination of value of the surface owners'
interest is subjec to judicial review as provided in this section.
S (e) Tender of the appraised value of the surface owner's interest shall occur when -
S (1) the lessee and the surface owner agree on an amount and method of compensation for the
surface owner's interest, whether or not the amount of compensation is fixed in accordance with the
provisions of subsection (f), and the surface owner has given the Secretary written consent for the
lessee to enter and commence surface mining operations; or
S (2) the lessee has deposited the appraised value of the surface owner's interest in the United
States district court for the locality in which the leasing tract is located. At any time after the
appraised value of the surface owner's interest is deposited in the court and upon execution by the
surface owner and the lessee of a final settlement of their rights under this section, the surface owner
shall be entitled to withdraw from the registry of the court the full amount of the deposit.
S (f) For the purposes of this section, the term "appraised value of the surface owner's interest"
means the value of the surface owner's interest fixed by the Secretary based on appraisals made by
three appraisers. One such appraiser shall be appointed by the Secretary, one appointed by the
surface ownr concerned, and one appointed jointly by the appraisers named by the Secretary and
such surface owner. In computing the value of the surface owner's interest, the appraisers shall fix
and determine -
S (1) the difference between the fair market value of the surface estae, computed without
reference to the value of the underlying coal, immediately before mining is to commence, and what
said fair market vaue is reasonably expected to be immediately after mining and associated activities
have been completed;
S (2) the net income the surface owner can be expected to lose as a result of the surface mining
operation during the two years immediately following approval of the mining plan: Provided,
however, That if mining and associated activities are reasonably expected to be completed within a
shorter period of time, then said net income shall be computed only for that shorter period of time;
S (3) the cost to the surface owner for relocation or dislocation during the mining and reclamation
process; and
S (4) any other damage to the surface caused or reasonably anticipated to be caused by the surface
mining and reclamation operations.
S (g) For the purpose of this section the term "surface owner" means the natural person or persons
(or corporation, the majority stock of which is held by a person or persons who meet the other
requirements of this section) who -
S (1) hold legal or equitable title to the land surface; and
S (2) have their principal place of residence on the land; or personally conduct farming or
ranching operations upon a farm or ranch unit to be affected by surface coal mining operations; or
receive directly a significant portion of their income, if any, from such farming or ranching
operations.
S (3) have met the conditions of paragraphs (1) and (2) for a period of at least six years prior to
the granting of the consent.
S In computing the six-year period the Secretary may include periods during which title was
owned by a relative of such persons y blood or marriage during which period such relative would
have met the requirements of this subsection.
S On page 4 of the amendment, line 23 and 24, strike the words "significant portion," and insert in
lieu thereof the word "majority."
S (h) The United States district court for the locality in which the leasing tract is located shall
have exclusive jurisdiction to review the determination of the value of the surface owner's interest
made pursuant to this section.
S (i) This section shall not apply to Indian lands.
S Mr. JOHNSTON. Very well. Mr. President, I would like to make clear the kind of figures we
are talking about. Just to take that example that the Senator from Wyoming used from the Powder
River Basin, where you have a seam of coal, as he pointed out, I believe he said a seam of coal 90
feet thick. Let us take a seam of coal 70 feet thick, and if you assume 1,750 tons of coal per acre
foot, which is, I think, also a figure he used, or in any event the figure that is ordinarily used, you
have an amount of coal per acre of 122,500 tons. If you assume a $7 selling fee for that coal, you
end up with a huge amount of money.
S Or let us just say, instead of assuming the $7 per ton sales price, that we assume a 50-cent fee to
that owner, which is about what owners get now when they lease their coal. Let us assume what
they get is 50 cents, and not any more than 50 cents per ton. You have a value of $6 1,250 per acre,
and you can pick any figure you want. At 60 cents, you get $7 3,500. At 25 cents, you get almost
31,000; or you can take a much smaller percentage. The point is that we are talking about
multimillions of dollars for the leasing of 640 acres.
S Mr. President, I am just about ready to bring this matter to a vote, if Senators are ready. I
would like to close on one note: President Carter made a television address not too many nights ago,
in which he talked about the crisis which this country faces.
S He said that we are running out of oil and gas, that it is a crisis calling for sacrifice by every
American. He called it the moral equivalent of war.
S He offered a gasoline tax that goes up as high as 50 cents a gallon. He offered a gas guzzler tax
that, in its initial year, goes up to $500 a car, and goes up as high as $2 ,500 a car. He offered a tax
on natural gas; a tax upon oil. He offered a tax on te industrial use of natural gas over and above
that. He proposed a conversion program that will cost my section of the country alone some $18
billion, according to the administration.
{S8008 } He called for sacrifice by every American.
S8008 So it seems to me, Mr. President, peculiarly inappropriate that here in the midst of this
moral equivalent of war, in the midst of this crisis, that those from the coal-owning areas say -
S8008 We do not want to make the sacrifice. We do not want to get less than our land is worth.
In fact, we want you to pay us whatever our land is worth when you want to mine the Government's
coal. In addition is that, we want about $10 million for every 640-acre tract.
S8008 That is what this bill provides. That is not an exaggeration and that is not an
overstatement. That is fact.
S8008 If that is what this Senate wants to do, if this Senate wants to say in the midst of this crisis,
"Let us give a $1 0 million per 640-acres windfall to these owners of the surface," when the
Government and the people of this country own the coal, then I submit to this Senate let us forget
this talk about crisis; let us forget this talk about sacrifice.
S8008 If the Senate expects me as a Senator from Louisiana to vote sacrifices upon my people
when we are granting $1 0 million windfalls out West, if the Senate wants me to ask my people to
give up oil and gas, and give up oil and gas for runways and for all the multiplicity of purposes the
Government has, I say it is not right. I say it is an outrage.
S8008 I trust the Members of this Senate are going to recognize the unfariness, the inequity, and
the outrageous nature of this bill and vote for this amendment.
S8008 Mr. MELCHER. Mr. President, Montana was part of the Louisiana Purchase. When that
purchase was made, perhaps the people in Louisiana, when they received patent to their land, also
received title to the subsurface minerals.
S8008 When the first settlers came to Montana, they received patent to their land and title to the
subsurface, to the minerals underneath.
S8008 There are many cases where title to the surface is separated from title to the subsurface and
the minerals which lie thereunder. But it was an act of Congress in the early 1900's, the Homestead
Act, that said the coal would be reserved to the United States but the homesteaders could have title
to the surface.
S8008 The very colloquy in the House during debate on that bill in the early 1900's stressed the
point that this would indeed not be so much of a hindrance to those homesteaders who came out
West, survived the rigors, and proved up on their claims, receiving title to their land. If that coal
which was reserved to the United States was ever mined, they would be out the right-of-way for the
tipple, the road, and the railroad tracks necessary for underground mining.
S8008 The colloquy demonstrated that. That is what Congress had in mind.
S8008 It did not have in mind that the land might some day be stripmined to get the coal that was
reserved to he United States, where all the surface would be taken away.
S8008 What would be paid to the landowner under that law in the early 1900's? Well, he would
get paid for the loss of his crops, for the loss of the right-of-way for the tipple, the roadway, and the
railroad tracks, but he would still have the huge percentage of that land. That surface would be his
and would not be interfered with.
S8008 During all the debate we have had on the national strip mine reclamation bill during the
past 4 or 5 years we have come up against this issue, we are against it today.
S8008 The Senator from Louisiana talks about sacrifice for his people. What is at issue here are
the property rights of those people who own their land but because of this reservation in the
Homestead Act they do not own the subsurface; they do not own the minerals.
S8008 It is Congress which must address this issue and say what the rights of the landowners are
since the modern method of mining that coal will be stripping it and taking away all the surface.
S8008 We had quite a siege in the conference committee in the Congress before last when we
reached this point. The conference darn near failed on this issue. We finally resolved it by saying,
"Yes, the landowner's rights to his land comes first. He shall have the right to say, 'Yes, I will permit
my land to be strip mined,' or he shall have the right to say, 'no.'"
S8008 Then in the compromise offered by the Senator from Louisiana and accepted by the
conference, we agreed to a system of arriving at the value of the surface in relation to the coal
underneath if the landowner said, "Yes," but we reserved that right. The landowner could keep his
land as is and say, "No," and then negotiate on the basis of what it would take if he were going to
lose the surface of his land.
S8008 We accepted the compromise of the Senator from Louisiana for that formula. It ended the
difficulty in the conference and we had a bill. The conference committee was successful. The
House accepted it, the Senate accepted it, but the President vetoed it.
S8008 Mr. JOHNSTON. Will the Senator yield at that point?
S8008 Mr. MELCHER. I will be delighted to yield.
S8008 Mr. JOHNSTON. The basis of that formula was basically the value of the surface plus
not to exceed $100 per acre. Is that accurate, as a general statement?
S8008 Mr. MELCHER. The value of the surface, the value of the interruption of his business,
the value of the loss of income, the value of moving, and then $100 as a bonus, if it were necessary.
S8008 Mr. JOHNSTON. Limited to a total a of $100 bonus.
S8008 Mr. MELCHER. No, not limited to a total of $1 00. And a bonus of $100. A bonus
means something on top.
S8008 Mr. JOHNSTON. That is correct.
S8008 Mr. MELCHER. Having arrived at that compromise, it was the thought of the House and
the Senate committees at this time - and the Senator served on the Committee on Energy which
handled this bill - it was the thought at the start of this Congress, "Let us get a bill. We have a
solution for this issue."
S8008 I understand that the committees have modified it somewhat, both in the House and in the
Senate. That modification is not objectionable. But to go back now and say to those landowners,
after these many years, "We have not arrived at the point of protecting your rights as landowner, but
we are going to throw you into the pit of uncertainty and you are going to run the risk of having
your land stripped away from you" - I have to say no to that.I think the Senate should say no to it, as
the House has said no to it.
S8008 I hope the Senator's amendment is defeated.
S8008 Mr. BUMPERS. Mr. President, I assume we have just about reached the point where
everybody has said everything they want to say on this.
S8008 First, I ask unanimous consent that Ark Monroe and George Jacobson, of my staff, may
have the privilege of the floor during debate and vote on this measure.
S8008 The PRESIDING OFFICER. Without objection, it is so ordered.
S8008 Mr. BUMPERS. Second, since the Senator from Louisiana modified his amendment in
accordance with my amendment to his amendment, at this time, I withdraw my amendment.
S8008 The amendment was withdrawn.
S8008 Mr. BUMPERS. Mr. President, there are two or three salient points I think ought to be
made before the Senate votes on this. I preface what I want to say by saying that if the Senate does
not accept this amendment, it will live to rue the day. It will live to rue the day.
S8008 First, we spend a lot of time talking about consumer rights. We are worried about
inflation in this country because of the rapid rise of energy rates that have occurred and will continue
to occur. Yet, here we are, about to pass a bill - and this of the greatest solutions to the energy
provide for the literal obstruction of one of the greatest solutions to the energy crisis. That is the
mining of coal.
S8008 Second, there is not a State in the Union, to my knowledge - not one of the 50 States - that
provides that people who legitimately own the mineral rights can be deprived of those mineral rights
simply because the surface owner does not want them to allow them. There is not a State in the
Union that provides for anything even close to the compensation that this amendment provides in
case the coal under the surface is dug.
S8008 There is not a State in the Union that even comes close to that compensation. And, Mr.
President, I defy anybody in this Chamber to find for me a statute on the books of the United States
Code that is as generous in the compensation that is to be awarded, through eminent domain or any
other taking, as provided by this amendment.
S8008 Mr. President, as my third point, I reiterate just what this amendment does: It says to these
surface owners, "We will give you the difference between the value of your farm today and after it is
mined. That is the law in this country in all eminent domain proceedings: you get the difference
between the before and the after value, considering the highest and best use to which that property
could ever be put.Not only are we going to give you the before and after value; we are going to give
you 2 years for loss of profits; and we are going to give you every expense that you have incurred by
being dislocated or anything else.
{S8009} Fourth, we are going to give you any other expenses that you can conceive of no matter
how specious it may be, and no matter how farfetched it may be. If there is a reasonable expectation
of it, you get that.
S8009 Then what is this bill all about?I shall tell you what the bill is all about: It is to make sure
that all strip mining is done and the land reclaimed to its original contours and as close to its original
productivity as is possible.
S8009 So, after we pay all those four kinds of compensations, and after we reclaim the land and
put it back into its original contour, as close to its original productivity as is possible, we give the
land back to him.
S8009 I do not think there is anything uncharitable or ungenerous about that.
S8009 Let us take another point. We are talking about consumers. Who is going to pay if the
predictions that the Senator from Louisiana and I have made come true about the unjust enrichment
that is going to be provided to the surface owners, who are going to have the hammer over the head
of every lessee, the Department of the Interior, and the people of the United States? Who is going to
pay for this outrageous price that these lessees will have to pay these surface owners? You and I
both know who is going to pay: the consumers, the people who use electricity.
S8009 And somewhere down the line, I say to my dear colleague from Wyoming, we are not
going to be mining a billion tons a year, as the President has said we should be doing by 1980 or
1985; we are going to be mining 2 to 10 billion tons a year. And we are going to be doing it very
soon. And what is the price going to be? That is just anybody's guess.
S8009 So there are two things we want to bear in mind: No. 1, all of those millions of dollars that
are going to go into the pockets of those surface owners, according to the illustration used by the
Senator from Colorado a while ago, the consumers are going to pay. Who is going to be the loser?
When the lessees bid this tract of land or the Department of the Interior puts out a tract of land for
lease and says, "You can mine this if you can get the surface owners' consent," who also suffers?
The Treasury of the United States.
S8009 We are not going to get as much for the coal because the lessee cannot pay that much for
the coal. He has to pay for the surface on it. So the Treasury of the United States, and therefore, the
people of the United States, are being robbed again - and I hesitate to use such a strong term.
S8009 Mr. President, as I say, I do not know of much that can be said that has not already been
said on this amendment. But I do want to say that I am glad to stand on the Senate floor today and
say that, unless this amendment is adopted and unless it sticks in the conference, the people of the
United States will have a legitimate right to hold us responsible for an irresponsible act.
S8009 Mr. MELCHER. Mr. President, the Senator from Arkansas was talking generally about
the statutes concerning mining and eminent domain.I do not think he is really addressing strip
mining of an area that might be 1,000 acres or 2,000 acres or 3,000 acres. I think his remarks were
more pertinent to deep mining, where you just disturb a tiny fraction of the surface and sink a shaft.
S8009 Is there not a vast amount of difference where they are going to strip mine and take away
all the surface that belongs to a londowner, and tell him, "Maybe you can get it back, reclaimed, 15
years from now, or maybe after a generation"? Is that not a huge difference from the question of
what is a landowner's rights in relation to shaft mining, where they only disturb a little bit of the
surface?
S8009 And what about all this cost for the consumer? We have heard this over and over again
during the last 3 years. So we took some figures. There was a utility company that said "If we had
surface owners' rights, those landowners out in Montana or Wyoming might get as much as $1 ,000
an acre for their surface for that sage land, that grazing land."
S8009 So we took their figures, $1 ,000 an acre, figured out the tonnage of coal underneath that,
and figured out how many kilowatts of electricity it would generate. And, yes, it was going to cost
the consumers. That was going to cost the consumers about $0 .00636 in their monthly utility bills.
Find it in their monthly utility bill: $0.00636 in the average monthly utility bill of consumers.
S8009 So, there, for the cost to consumers.
S8009 What is more important - that the landowner have some right over his surface, or do we
concern ourselves about $0.00636 in the average monthly utility bill of the consumer?
S8009 How much coal is involved? In my State, the USGS tells us there are 40-odd billion tons
of strippable coal. The marketplace is going to establish where that coal is strip mined next year, 5
years from now, 10 years from now, and 20 years from now. We shall probably only strip mine, in
the West, 200 million tons of coal in any year during the next 10 years. Why do we have to trample
over the rights of those landowners, where it looks best to strip mine now, and ignore their rights for
their surface, rather than being selective and saying to the marketplace, and through the economics
of transportation and the economics of where the coal is wanted to be used: "Let us look at a series
of alternatives where we might strip mine."
S8009 In doing so, then negotiate with the landownersin those particular areas of the West to see
which ones are willing to forgo their surface.
S8009 It will not impede strip mining in the West, but it will bring to it an honesty and an equity
we must have and this Senate must agree to.
S8009 Mr. McCLURE addressed the Chair.
S8009 Mr. DANFORTH. Will the Senator yield for a unanimous-consent request?
S8009 Mr. McCLURE. I am happy to .
S8009 Mr. DANFORTH. Mr. President, I ask unanimous consent that Allen Moore of my staff
be granted the privilege of the floor.
S8009 The PRESIDING OFFICER (Mr. PELL). Without objection, it is so ordered.
S8009 Mr. McCLURE. Mr. President, I ask unanimous consent that Doug Smith of my staff be
granted the privilege of the floor at all stages of the proceedings on this legislation.
S8009 The PRESIDING OFFICER. Without objection, it is so ordered.
S8009 Mr. McCLURE. Mr. President, a number of us have been involved in this debate for the
last several years. An has been pointed out, this matter has been before the Congress of the United
States for several years. My first reaction, as the Senator from Montana would know, is that we
should not deal with the question of the surface owners. That is something that perhaps should best
be dealt with by the States under State laws, in the various variety of ways in which State
legislatures and State courts have wrestled with the question of surface, subsurface, owner rights,
and the way we balance those two rights and the equities involved.
S8009 That was the initial reaction of the committee, to remain silent on this and let each State
confront the question in its own way.
S8009 As we get into this question more deeply and we get involved more and more in a matter of
national policy, then we begin to wrestle ourselves with what kind of policy was best.
S8009 I am convinced that if we have to make an error in this field, we ought to err on the side of
protecting the rights of the surface property owner. That is really what we are talking about.
S8009 The Senator from Louisiana and the Senator from Arkansas are talking about payments of
$1 0 million an acre to the surface owner. That is patently and obviously rediculous. That is not
going to happen. Market constraints themselves will prevent that from happening. As the Senator
from Wyoming has pointed but, no payments he knows of have exceeded $1,000 an acre for
surface-owner consent.
S8009 It has been suggested by some that all of this coal will be deprived to the owners of the
coal, that people of the United States. The Senator from Louisiana stated that his people in
Louisiana had to give up their oil and gas for the public good, why should not the people in the West
have to give up their surface for the public good?
S8009 That is not exactly what he said, but this is what he meant.
S8009 Let me say, the owners of the oil and gas in Louisiana did not give it up, they sold it. Ie
was not reserved for the Federal Government. It was owned by the owners who then sold it on the
market and they got a price for all of it, not just the owner's consent.
S8009 They did not sell the right to consent to remove that oil and gas.They got the market price
of the oil and gas. We are not even talking about that here.
S8009 I am not talking for people in my State because the State of Idaho does not have strippable
coal. It has very little coal at all. But I am concerned about the competitive rights of the people who
live in the Western United States, the public land States, as compared to people who live in the rest
of the States in the United States because, as was observed, we did not have the same options that
people in the rest of the United States had with regard to how we owned the land.
{S8010} The Congress of the United States put some restrictions on it before they would allow
our people to own it. Those restrictions now become an onerous burden.I do not think it makes any
sense at all, at least not to this Senator, to say, "You now must bear that burden because we want
that coal."
S8010 It is not going to deprive the markets of the United States of coal that is necessary for the
energy program in this country. There is plenty of coal, as has been observed by some.