Federal Update: Appropriations


The Senate is on the verge of a deal on a $35 billion budget savings package after months of negotiations, but the House’s pursuit of a bigger package of spending cuts will likely complicate Republican leaders’ ability to reach a bicameral agreement. House GOP leaders are struggling to find the votes for further budget cuts proposed by House Speaker J. Dennis Hastert, R-IL, as authorizing committees continue to produce their recommendations for achieving the savings. The Senate Budget Committee is assembling the savings proposals into a single bill. Under rules of the budget reconciliation process, the panel cannot make substantive changes to the proposals of the authorizing committees. The package will then go to the floor for 20 hours of debate and there will likely be attempts to amend it, particularly by Democrats aiming to get GOP lawmakers on the record as voting to slice popular programs. However, if the package complies with the reconciliation instructions outlined in the budget resolution (H Con Res 95) adopted in April, Democrats will not be able to filibuster the budget bill. The budget resolution also outlined a $70 billion tax cut reconciliation bill. Since no Democrats are expected to support the budget-cutting bill, success in the Senate will hinge on GOP moderates. During the Senate vote on the budget resolution in April, three Republicans defected; Lincoln Chafee of Rhode Island and Ohioans Mike DeWine and George V. Voinovich. Chafee said he would oppose both the tax cut and the spending cut bills. “It’s bad timing to be doing tax cuts and then put pressure on social programs,” he said. Voinovich, who has questioned the need for more tax cuts, said he was inclined to vote for the savings bill. “I’m a fiscal hawk, so my tendency is to vote for it,” he said. Seven Republicans also have voted to oppose drilling in the Arctic National Wildlife Refuge (ANWR), and are under pressure from environmental groups to vote against a package that includes drilling. Senate leaders can lose up to five GOP votes on the final tally, with Vice President Dick Cheney breaking a tie vote.

House authorizing panels, meanwhile, are moving forward without firm targets for reconciliation savings as prospects for increasing cuts to $50 billion remain uncertain. House leaders have floated an additional $7 billion in savings for Ways and Means; $5.5 billion more for Education and the Workforce; $1.6 billion more from Energy and Commerce; and $1.2 billion more from the Agriculture Committee. With House leaders struggling to get 218 votes for the deeper cuts, they could also face difficulty keeping provisions such as ANWR drilling in the bill. Two dozen House GOP lawmakers have signed a letter opposing ANWR’s inclusion. House leaders can lose no more than 13 GOP votes, because like their Senate counterparts, they cannot count on any Democratic support.

Once reconciliation packages pass both chambers, conferees must strike a balance between the deeper savings sought by House conservatives and maintaining sweeteners needed to win the votes of moderates.


Efforts in D.C. are focused on averting any additional cutbacks, i.e., through cross-the-board reductions, that would further affect Northwest tribal funding. The current status of appropriations has been reported to NWIFC. The $90 million Senate CSRF appropriation (vs. the House’s $50 million) continues to be subject for debate in conference. Overall, an omnibus bill, vs. individual funding bills, may still materialize. Current funding levels:

TFW/FF–$1.737 million, down from $3.04 million in FY ’05; Mass Marking–$1 million, up from $901,000 last year, but shy of the $1.25 million anticipated to implement the second year of the work plan; Hatchery Reform–$500,000 for Long Live The Kings and HSRG, 0 for tribes; Hatchery Maintenance/Rehab–$637,000, up from $490,000 in FY ’05, but allocated from a national pool; Coordinated Water—Earmark not funded this year, as was the case in FY ’05; Shellfish Settlement—The settlement fund did not receive anything this year (Interior’s slowness in developing consent decree language kept appropriators from allocating a $2 million amount for the first year of this deal. Work is ongoing to get this moving, and to make appropriate adjustments in state budget language, but a hang up related to Samish inclusion might kill the deal. CSJ– No groundfish funding.


The Senate had adopted a $100 billion agriculture appropriations bill (H.R. 2744) for FY 2006, which includes almost $820 million for the Department of Agriculture’s conservation programs, $25 million more than the House included in its version of the bill. In total, the Senate version of H.R. 2744 is $500 million richer than the bill passed by the House. House and Senate negotiators must work out differences in the two bills before Congress adjourns later this year.


House and Senate appropriators abruptly canceled a scheduled conference meeting on the FY 2006 Energy and Water Appropriations bill recently after Senate appropriators attempted to strike a provision aimed at reining in Army Corps of Engineers contracting authority. The dispute arose over the Corps’ decades-old authority to use so-called continuing contracts. Unlike other agencies, aides said, the Corps can enter into multi-year contracts without having appropriations approval in place. The House wanted to include language in the spending bill that would restrict that authority, but the Senate objected. The House-passed appropriations bill (HR 2419) would provide $29.7 billion, roughly matching President Bush’s request and slightly less than the amount provided in fiscal 2005. The Senate bill calls for a 5 percent increase over FY 2005, to $31.2 billion. GOP leaders instructed conferees to split the $1.5 billion difference, slating the overall funding for roughly $30.5 billion. That forced Senate appropriators, led by Sen. Pete V. Domenici, R-NM, to come up with about $750 million in cuts. Along with spending differences and Corps money management, the two chambers also have disagreed on policy issues such as nuclear-waste disposal and Corps project priorities.


The House passed a drastic overhaul of the Endangered Species Act in late September. The bill (H.R. 3824), sponsored by Rep. Richard Pombo, R-CA, House Resources Committee chair, represents the biggest change to the Endangered Species Act since it was first enacted over 30 years ago. The bill would severely undermine several key provisions of the act; among other things, it would completely eliminate the designation of “critical habitat” for species on the brink of extinction, roll back regulations protecting endangered species from harmful pesticides and create a new entitlement program to pay developers for loss of the use of some land due to ESA restrictions. Thirty-four Republicans voted against the bill, creating a closer than expected margin on final passage and sending a strong signal to the Senate that the bill is extremely controversial. The Senate must now decide if it wants to take up the House version of the bill before the end of the year or develop its own approach.

NWIFC Chairman Billy Frank, Jr. testified at an ESA scoping hearing held by the Senate Subcommittee on Fisheries, Wildlife and Water on September 12, essentially telling Senators Chafee, Clinton and others that ESA is an important law but that its implementation relative to Northwest salmon stocks has had inadequate focus on habitat and hydro and has been over-focused on harvest and hatcheries. In an effort to develop a nationwide tribal consensus on ESA, Northwest tribes scheduled a work session at NCAI, intended to provide background on current events, the Secretarial Order, etc. NCAI is being held in Tulsa, OK, October 31 through November 4, and the following draft resolution, being sponsored by the Tulalip Tribes, has been introduced:

Whereas Congress is considering amendments to the Endangered Species Act, and,

Whereas many Tribes retain treaty reserved hunting and fishing rights and Tribes, as sovereign governments, currently exercise management authority over many species of fish and game and other natural resources;

Therefore be it resolved that amendments to the Endangered Species Act should recognize and preserve Tribal treaty rights and acknowledge Tribes’ natural resources co-management authority;

Be it further Resolved that the National Congress of American Indians will establish and support an ESA Tribal Work Group with the purpose of developing united tribal positions related to congressional efforts to reform the Endangered Species Act.

Also on the ESA front, US Fish and Wildlife will propose removing threatened-species protection from the marbled murrelet and start a yearlong evaluation of the status of the bird. This is the latest step in a process that began with a lawsuit filed by the American Forest Resource Council demanding a five-year review of the bird’s status, as required by ESA. Court battles over needs of the marbled murrelet, northern spotted owl and salmon led the Forest Service and Bureau of Land Management to adopt the Northwest Forest Plan in 1994, which cut logging on federal lands in Washington, Oregon and Northern California by 80 percent to protect fish and wildlife habitat. Even those diminished logging levels have never been met because of legal battles and lack of funds for federal agencies, leading the timber industry to press the Bush administration to ease restrictions. In that five-year review, 16 international scientists assembled under contract to Fish and Wildlife last year found the marbled murrelet was still declining through North America and remained particularly vulnerable in the Northwest.


On October 7, the House narrowly passed a new energy bill (H.R. 3893) after Republican leadership held the vote open long enough to garner the necessary votes. Sponsored by Rep. Barton (R-TX), the legislation would weaken numerous provisions of the Clean Air Act and provide regulatory incentives for quick construction of oil refineries. The bill also would reduce the number of automotive fuel blends designed to reduce polluting emissions, and would allow Bush to designate areas on federal land, including closed military bases and wildlife refuges, as new refinery sites. The Senate is not expected to take action on the bill, although vigilance is advised.


House Resources Committee Chairman Richard W. Pombo, R-CA, has announced he will join the efforts of Senators John McCain and Byron Dorgan, the chairman and ranking democrat of the Senate Indian Affairs Committee, in crafting a legislative settlement of the Cobell v. Norton lawsuit. The announcement follows on the heels of a preliminary injunction by the District Court overseeing the litigation, calling for a shutdown of much of the Interior Department’s internet. “Today’s order by the District Court demonstrates the need to take this matter out of this court’s hands, where it has soured for 9 years, and settle it through legislation for the benefit of the individual Indian account holders,” said Pombo. Senators McCain and Dorgan have introduced S. 1439, a bill aimed at resolving the accounting claims that are the subject of the lawsuit, and to reform the Interior Department’s management of assets it holds in trust for the benefit of individual Indians. Such reforms are intended to prevent the recurrence of problems that led to the filing of the lawsuit. The chairman and ranking members of the two committees have overseen an effort to mediate a settlement between the Indian plaintiffs and the Department of Interior over the past 18 months. These mediation efforts pointed to the need for a legislative settlement. Filed in 1996, the Cobell lawsuit initially began as an earnest effort to make the Department of the Interior account for the payment of monies to several hundred thousand individual Indian beneficiaries. The lawsuit confirmed more than 100 years of improper record keeping and that a full accounting could not be provided to the Indian plaintiffs.


The House Resources Committee, chaired by Congressman Pombo, has given a boost to the Makah Tribe’s bid to resume whale hunting. The panel approved a non-binding resolution urging the Bush administration to uphold whaling rights guaranteed to the tribe under an 1855 treaty with the federal government. The resolution, sponsored by Pombo, calls a waiver process required by the National Marine Fisheries Service “burdensome, costly and … tantamount to a denial of the tribe’s treaty rights.” The resolution goes on to urge Congress to express “its disapproval of the abrogation of the tribe’s treaty rights, and that the government of the United States should uphold the treaty rights of the Makah Tribe.” The panel approved the measure 21-6, with 5 democrats joining 16 republicans in support. Five democrats, including Rep. Jay Inslee of Washington, voted against the measure. Inslee ridiculed the resolution as a “political statement” with no legal effect, introduced by an out-of-state lawmaker. “This effort is clearly not a serious effort by Chairman Pombo to look into an important issue. It’s just asking us to make a political statement” in favor of the tribe, Inslee said. Inslee said he supports the tribe’s treaty rights, but said he also wants to uphold the Marine Mammal Protection Act, which outlaws whaling in the United States. The tribe is proposing to harvest as many as 20 gray whales during a five-year period, with a maximum of five whales killed in any one year. “This is a very complicated issue and we ought to have hearings on it,” Inslee said.


Congressman Pombo has received $90,000 in donations from tribes so far this year, according to a recent Associated Press report. The figure is up from the $71,000 that was reported in July. At least 18 tribes have given to Pombo’s coffers. According to Political Money Line, Pombo has received $221,000 from tribes since 1999. That ranks him third among all House members in terms of tribal donations.


In a striking defeat for President Bush, White House counsel Harriet Miers recently abandoned her bid to become a Supreme Court justice after three weeks of brutal criticism from fellow ultra-conservatives. The Senate’s top Republican predicted a replacement candidate within days. Miers said she ended her quest for confirmation because the Senate was demanding documents and information detailing her private advice to the president. And so, the disappointments continue to stack up for Bush. The most recent development in that saga was an indictment of vice presidential adviser I. Lewis “Scooter’ Libby Jr. who has been indicted on charges of obstruction of justice, making a false statement and perjury in the CIA leak case.


The National Federation of Independent Business, the nation’s largest small-business advocacy group, is supporting legislation in the House to prevent the filing of frivolous lawsuits and reduce abusive, job-destroying litigation. The bipartisan bill is H.R. 420, the Lawsuit Abuse Reduction Act of 2005 (LARA). “Litigation is big business, and it’s killing small business,” said NFIB Executive Vice President Dan Danner. “When a single lawsuit costs the average small-business owner $5,000 just to settle, and their salary averages $50,000 a year, it is clear that they can’t afford to be preyed upon by lawyers who target small businesses. NFIB strongly endorses H.R. 420 because this legislation will significantly reduce the culture of predatory lawsuits harming our small businesses, communities and economy.” The effort is intended to reduce the number of “frivolous” lawsuits and related “exorbitant” costs that can drive small businesses to financial ruin. In a 2004 NFIB Research Foundation survey, small-business owners ranked the “cost and availability of liability insurance” as the second most important problem facing small business owners today.


Uncle Sam is getting hammered in federal courts for failing to protect endangered salmon. The US Ninth Circuit Court of Appeals has rejected Bush’s water diversion plan for the Klamath River in California and Oregon because it does not protect the river’s coho salmon, listed as threatened under ESA. Also, a federal judge in Portland has said he’s had it with failed attempts to recover wild salmon (not to be confused with the hatchery fish) headed toward extinction in the vast Columbia River Basin, an area the size of central Europe. After years of trying and failing, and more than $1 billion spent on recovery efforts, US District Judge James Redden gave federal agencies one year—not the two years they had asked for—to come up with a plan that actually works. He also raised the specter of tearing out mammoth hydroelectric dams in the Columbia-Snake River system, which could dramatically alter the agriculture and shipping industries, though benefit the long-term salmon-based economy.


On Tuesday, October 11 and Wednesday, October 12, Congressmen Brian Baird and Norm Dicks of Washington State and Greg Walden of Oregon held meetings focused primarily on the harvest of adult fish clearly designed to be critical of harvest of salmon listed as threatened or endangered under ESA. The first hearing was held in Vancouver and the second in Tacoma. The Congressmen expressed concern that ESA-listed salmon are being harvested. Dicks and a majority of the presenters (states, industry, NGO’s) touted the benefits of mass marking and mark selective fishing and Dicks highlighted the work of the HSRG and the ability of mass marking to monitor hatchery effectiveness. Billy Frank, Jr. testified at the October 12 meeting, emphasizing the need for salmon recovery to focus on habitat rather than just harvest and making the point that a dead fish is a dead fish, whether killed to eat or by a turbine or polluted water. Copies of his printed statement have been distributed to all tribes and are available on request.