Federal Update: After The Recess


Congress is scheduled to reconvene September 7 and then adjourn by October 1—a predictably short session as the November 2 elections quickly approach. The post-election session will be similarly short. A lot is at stake in this election, of course, including many issues affecting tribal natural resource management/environmental protection. But regardless of the outcome, some of the current legislation, including appropriations, could affect Indians and other citizens in the years to come, and generally speaking, proposed appropriations are tight—a far cry from the levels deserved for meaningful salmon recovery and habitat restoration. Environmental protection programs are under assault in many respects, although there are also opportunities. The bottom line is that there is need for vigilance.

A tribal/NWIFC visitation is planned to the nation’s capitol the second week in September, and there will be a large presence there later in the month as the National Museum of the American Indian opens. There was little response by Commerce-Justice-State committee staffers to an invitation sent to them via the Coalition for Salmon Funding, intended to help provide background to them regarding salmon. It has become clear that these staffers, who perform a critical role in that funding component, are generally ill-informed about the resource. That, combined with the fact that interests in other parts of the country have pressured them to be more “equitable” in the funding scenario, makes the need for pro-active education evident, particularly with short sessions.


As Congress reconvenes, a partial omnibus appropriations package may still be the order of the day when legislators return after Labor Day. The Senate may still go after passage of the Homeland Security funding bill (S 2537) and it could still become the vehicle for an omnibus spending package in September in a last-ditch attempt to get some or all of the unfinished spending bills to the president before the Nov. 2 election. Attaching other spending bills to the politically sensitive Homeland Security measure in conference would make it more difficult for Democrats to oppose an omnibus. But such a plan could encounter a host of problems. Democrats did not hesitate to block a GOP attempt to attach legislation increasing the debt limit to the popular defense spending bill (S 2559) in June, and would likely object to any move that would take away their ability to offer amendments. The House passed a fiscal ‘05 appropriations bill including $2.2 billion for NOAA, a cut from current-year funding. While the NOAA funding level provoked criticism during subcommittee and committee markups, floor debate on the commerce-justice-state (CJS) appropriations bill (HR 4754) focused on other issues. The $2.2 billion appropriation for NOAA is $398 million below the FY ‘04 level and $136 million below Bush’s request. The most likely budget scenario at this juncture is renegotiation after the election.


There has still been no Senate action on the FY ‘05 Interior and Related Agencies Appropriations Bill, which the House has marked. The bill funds BIA and USFWS. Within the House BIA, Pacific Northwest Tribes are slated to receive $4 million for FFR (likely includes $920,000 for mass marking). Shellfish is in the base, so tribes should see last year’s level. The Unresolved Hunting and Fishing monies were not restored, so hunting funding is problematical. Within the FWS, $2.5 million has been earmarked for the final year of hatchery reform. House Commerce-Justice-State has marked the FY ‘05 funding bill, allotting only $80 million to the Coastal Salmon Recovery Fund, down from last year’s $90 million and the $100 million budget request. No action on the Senate side. Coastal management and ocean and atmospheric research programs were particularly hard hit by that request.


DOI Secretary Gale Norton has announced $16 million in cost-share conservation grants to private landowners and Native American tribes. The grants will support 150 projects to conserve threatened, endangered and at-risk species and restore habitat across the country. Among them are:

(Lummi Indian Business Council) – ($150,000.00) – The Acme-Saxon Habitat Restoration Project (Phase I) will fund 2 of 10 historic scale logjams in the South Fork River improving habitat for resident and anadromous fish. Additionally, a 7 acre riparian confier forest buffer to the South Fork will be enhanced contributing to a previous 110 acre restoration effort adjacent to this project.

Fornsby Creek / Smokehouse Floodplain Tidal Wetland Restoration Project – (Swinomish Indian Tribal Community) – ($142,000.00) – Replace impassible tide gates for salmon with self-regulating ones as well as restore tidal influence to channels to improve fresh/saltwater mixing zones for juvenile salmonids. Additoinally, 1.3 miles of channel habitat will be restored, and 40 acres of permanent conservation easements on agricultural lands bought.

Skagit River Groundwater Channel Feasibility Investigation- (Upper Skagit Tribal Council) – ($12,000.00) – This study will help identify off channel habitat restoration sites for spawning and rearing needs critical for salmon species in the Skagit River watershed.

Managing Elk and Deer for Sustainable Harvest in a Habitat-limited & Preditor-rich Landscape
(Muckleshoot Tribal Council) – ($203,500.00) – Specific habitat enhancement projects in 2 adjacent watersheds that are important historical hunting areas for the tribe will be conducted.

Tarboo Watershed Riparian and Wetland Restoration – (application by Northwest Watershed Institute) – East Jefferson County, Washington – ($108 ,000 ) – A total of 31 acres of riparian and associated wetlands will be restored at 3 high priority sites in the Tarboo Watershed, located in the North Hood Canal region of Washington. Three sites are located on properties owned by 5 landowners. The restored areas will improve rearing and spawning habitats for Coho, steelhead, cutthroat trout, and other wildlife species.


An article influenced by the U.S. Fish and Wildlife Service has claimed that conservationists are expressing concerns about S. 2301, the Native American Fish and Wildlife Management bill sponsored by Senator Daniel K. Inouye and passed recently by the Senate Committee on Indian Affairs. The article was published under the headline, “Approved bill could wreak havoc with state and federal fish and wildlife management.” The “conservationists” raising the objections were not named. The article, published on August 17 in the Outdoor News Bulletin, published monthly by the Wildlife Management Institute based in Washington DC, went on to say that conservationists are concerned about “the bill’s potential to change long-standing jurisdictional relationships among the federal government, state governments and Indian tribes concerning fish and wildlife resources, which could lead to years of controversy and litigation. Many of the provisions that conservationists find troubling stem from the bill’s incorrect and expansive statements of the federal trust responsibility to Indian tribes. In doing so, they argue, the bill preempts the primary authority of states to protect and manage fish and resident wildlife.”

Comments direct from DOI also stated that the agency has problems with the bill, as it did with S 1526, a predecessor to the bill, nearly a decade ago. Among other things, agency spokespersons say the bill creates new broad trust responsibilities, misstate the current state of the law with regard to fishing, hunting & gathering rights, and imply that the bill is amending existing treaty rights. In addition, the substance of the bill requires the Secretary to assist tribes in coming up with management plans to govern wildlife that has always traditionally been managed mainly by States — i.e. all of the fish & wildlife in the ceded territories. The bill also defines all this wildlife as Indian fish and wildlife, which should be managed for the maximum benefit of tribes. “This overlooks the very strong interest that states have. While many tribes have treaty rights to hunt and fish across vast areas of the United States, no court has ever found that those rights include the right to infringe upon States’ inherent rights to manage those resources,” said a DOI spokesperson.

In fact, provisions of S 2301 are based on existing case law and on the promises of the Self Determination Act. Also, language in S 2301 has been “softened” to authorize, rather than require actions, and the bill includes a substantial savings clause which U.S. Fish and Wildlife has ignored. With the controversy beginning to brew over this legislation, tribes must decide whether the bill, at least in some amended form, is worth drawing a line in the sand. Copies of the bill have been distributed to all tribes, and to all tribal attorneys. For more information, call Steve Robinson at 360 438-1180, ext. 317 or consult www.thomas.loc.gov. The bill has been supported by tribes throughout the country, is essentially intended to enable tribes to manage resources off-reservation, and receive more adequate federal support in the process.


The July edition of Federal Update included an article on legislation that has surfaced since the publication of the Pew and Ocean Commission reports on the dire condition of the world’s oceans. Among the bills introduced to date are S 2280 (Stevens), establishing the Coordinated National Exploration Program within NOAA; S 2488 (Inouye), reducing marine debris; S 2647 (Hollings), the Comprehensive Ocean Reform bill; HR 4546 (Ehlers), NOAA Act; and HR 4607 (Ehlers), the NOAA Organic Act. Also Sen. Barbara Boxer (D-CA) plans to introduce an ocean policy reform bill.

In addition to these bills, described in greater detail in the July edition, HR 4900—the 127-page “Big Oceans Bill” or “BOB” (also titled the “Oceans Conservation, Education and National Strategy for the 21st Century Act) was introduced on July 22 by Rep. James Greenwood, R-PA. The bill would establish a national policy for our oceans, to strengthen the National Oceanic and Atmospheric Administration and establish a National Oceans Council. The bill was referred to the Subcommittee on Environment, Technology and Standards and will probably see action shortly after Congress reconvenes. Participants in the Blue Oceans Council, calling themselves “Seaweed Rebels” distributed a statement that this bill, plus the 16 ocean bills now in the Senate, could evolve into a comprehensive Oceans Act along the Clean Air and Clean Water Acts of the last century. Immediate feedback is being sought from citizens groups by the House Ocean Caucus (via Rep. Sam Farr’s assistant, Jessica Maher, at [email protected]) regarding Oceans 21. This bill would establish a national ocean policy to “”protect, maintain and restore the health of marine ecosystems.”” It also would make ecosystem-based management a top priority of ocean policy. Oceans-21 contains an organic act for NOAA, codifying for the first time an agency established by executive order in 1970. The bill would maintain NOAA’s position in Commerce but would call for an executive branch report to look into establishing a new department of natural resources. Ocean Caucus co-chairs include Rep. Farr, 225-2861 (staff: Jess Maher, 202 225-2861); Rep. James Greenwood (Judy Borger, 202 225-4276); Rep. Tom Allen (Jennifer Brewer, 202 225-6116) and Rep. Curt Weldon (Mary Girard, 202 225-2011).


Speaking of oceans: El Nino, described by NOAA as a disruption of the ocean-atmosphere system in the Tropical Pacific having important consequences for weather and climate around the globe, appears to be brewing again and scientists already are speculating that the storm will have an adverse effect on Pacific Northwest Salmon. The record or near-record runs of the past several years are primarily the result of favorable ocean conditions. An El Niño event, even a moderate one like that currently predicted, could reverse the trend, scientists say. Earlier this summer, a string of weather buoys stretching across the Pacific from New Guinea to the Galapagos Islands detected a warming in surface waters, the first signs of a possible El Niño. The increase was slight, roughly 1 degree above normal, the National Weather Service’s Climate Prediction Center said it could “”indicate the possible early stages of a warming episode.”” The agency also said the normal easterly winds that blow across the equatorial Pacific in mid-June and early July had weakened, another possible sign of an El Niño.


In a striking shift in the way the Bush administration has portrayed the science of climate change so far, a new report to Congress has focused on federal research indicating that emissions of carbon dioxide and other heat-trapping gases are the only likely explanation for global warming over the last three decades. In delivering the report to Congress Dr. James Mahoney said it reflected “”the best possible scientific information”” on climate change. Previously, President Bush and other officials had stressed uncertainties in understanding the causes and consequences of warming as a reason for rejecting binding restrictions on heat-trapping gases. American and international panels of experts concluded as early as 2001 that smokestack and tailpipe discharges of heat-trapping gases were the most likely cause of recent global warming. But the White House had disputed those conclusions.


The departure of several BIA leadership figures at roughly the same time is not evidence of a shake-up at the embattled agency, according a DOI spokesman. Aurene Martin, who has resigned effective in September, did so to pursue another professional position, the spokesman said, denying the rumor of a poor working relationship between Martin and Dave Anderson, the agency director since last October. Martin, the best-known of several executives leaving the BIA, served as interim director before Anderson’s long-delayed confirmation by the Senate. No end of speculation has attended the BIA reorganization that got its start under Anderson’s predecessor and went forward despite widespread resistance from tribal leaders. Anderson had good words for departing staff members, and said good career staff are available to replace those departing. Undersecretary Anderson says he feels positive about the future of his program at the BIA.


EPA has released its summary of information on locally-issued fish advisories and safe-eating guidelines. information provided annually by states, territories and tribes. For specific information, consult http://www.epa.gov/waterscience/fish. Waters are monitored by sampling fish tissue for long-lasting pollutants that bioaccumulate.


The Sauk Suiattle Tribe has objected to the Forest Service’s adoption of interim final regulations for managing the harvest and sale of special forest products on National Forest System lands without proper government-to-government consultation. Jason Joseph, Chairman of the tribe, has strongly urged a 60 day extension to allow affected tribes adequate time to thoroughly review and comment on the regulations, saying they will surely impact tribal treaty-protected gathering rights. “In fact, the Forest Service’s own policies reflect a recognition that government-to-government relations with tribal governments be conducted in a way that ‘honors Indian Treaty Rights and fulfills legally-mandated trust responsibilities to the extent they apply to National Forest System lands’. We urge the Forest Service to be consistent with its own policy and engage in meaningful government-to-government consultation with the affected tribes,” said Joseph.