Federal Update: Budget


With the August Congressional recess and the national conventions upon us, a partial omnibus appropriations package may be the order of the day when legislators return after Labor Day. (Note: There has been some discussion about reconvening earlier to deal with 9/11 Commission Report.) Both Senate Majority Leader Bill Frist (R-TN) and Appropriations Chair Ted Stevens (R-AK) have said they would wait until then to take up an omnibus that would include bills passed by the House. The Senate did pass its defense spending bill (HR 4613) last month. Stevens had complained that Democrats would not agree to limit amendments on spending bills, hindering the possibility of floor action.

The Senate may go after passage of the Homeland Security funding bill (S 2537) and it could 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 the National Oceanic and Atmospheric Administration, 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. Before final passage of the $40 billion bill, the House rejected an amendment by Rep. Joel Hefley (R-CO) that would have cut overall spending by 1 percent and left the distribution of the cuts to the administration. The $2.2 billion appropriation for NOAA is $398 million below the FY ‘04 level and $136 million below Bush’s request. Rep. Frank Wolf (R-VA), chair of the CJS subcommittee, said cuts in NOAA were necessary because this year’s budget was above historic levels. “”We reduced lower priority spending in NOAA, but the critical core programs of NOAA are maintained as well as many established ocean and fisheries programs,”” he said. Rep. David Obey (D-WI), the ranking Democrat on the full committee, called the NOAA cuts “”patently irresponsible,”” and the overall budget allocation for the bill “inadequate.”


The full House Appropriations Committee had marked up and approved the FY ‘05 Interior and Related Agencies Appropriations Bill on June 9. The bill, which funds BIA and USFWS, has been marked by the House. But there has been no Senate action. Budget reconciliation may have to wait until after the election. Within the House BIA, Pacific Northwest Tribes are slated to receive $4 million for FFR (likely includes $1 million mass marking). Shellfish was in the base, so tribes should see last year’s level. The Unresolved Hunting and Fishing monies were not restored, so hunting funding remains precarious. Within the FWS, $2.5 million has been earmarked for the final year of hatchery reform.

The House Appropriations subcommittee on Commerce-Justice-State had marked the FY ‘05 funding bill. Only $80 million was allotted to the Coastal Salmon Recovery Fund, down from last year’s $90 million and the $100 million budget request. No action has occurred yet on the Senate side. Coastal management and ocean and atmospheric research programs were particularly hard hit by that request. The budget requested $379 million for operations, research and facilities of the National Ocean Service, a decrease of $126 million from the FY ‘04 enacted level. NMFS requested $623 million, the same amount as in FY ‘04. The Office of Oceanic and Atmospheric Research requested $350 million, a cut of $43 million from FY ‘04.


The Senate Commerce Committee has passed two oceans-related bills by voice vote. The committee did not consider a third, more comprehensive bill originally on the markup docket. Members approved S 2280, introduced by Senate Appropriations Committee Chair Ted Stevens (R-AK) that would authorize $45 million for each of fiscal years ’05 through ’10 and $55 million annually for fiscal years ’11 through ’16 to establish a coordinated national ocean exploration program within NOAA. The bill would authorize an interagency task force to coordinate federal and non-government cooperation. The committee also approved S 2488, which would establish a NOAA and Coast Guard program to reduce/prevent marine debris and authorize $10 million in FY ’05 for the Commerce Department and $5 million for the Coast Guard. A comprehensive ocean reform bill (S. 2647) introduced by Sen. Fritz Hollings (D-SC) was originally scheduled to be marked up but was left off the docket to allow more time for stakeholders to comment. Expect a markup after Congress returns from recess. Hollings’ bill would remove NOAA from Commerce and make it an independent agency after a 2-year transition. Bush opposes such a change, as does the Ocean Commission, out of concern that ensuing political wrangling would overshadow consideration of the report’s nearly 200 other recommendations. There’s a common interest in seeing NOAA improved, the question is how to do that. Hollings’ bill contains an “organic” act for NOAA, to establish a leadership structure (assistant administrator for ocean management and one for climate and atmosphere.) Also Sen. Barbara Boxer (D-CA) planned to introduce an ocean policy reform bill.


On the other side of the Capitol, leaders of the House Oceans Caucus planned to introduce a comprehensive ocean policy reform bill that also incorporates many of the recommendations of recent oceans panels. The bill, titled “”Oceans-21,”” 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. Like Hollings’ bill, 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. The bill would not reform the regional fishery management councils. That has been left to H.R.4706 by Rep. Nick Rahall (D-WV), currently pending before the Resources Committee. The U.S. commission called for increasing the representation of conservation groups on the councils as well as making them more beholden to the advice of their scientific advisory groups.

Two ocean bills have also been heard by the House Science Subcommittee on Environment, Technology and Standards (ETS): H.R. 4546, the National Oceanic and Atmospheric Administration Act, and H.R. 4607, the National Oceanic and Administration Organic Act of 2004. The hearing was to define NOAA’s mission and functions. Both bills, introduced by ETS Chair Vernon Ehlers (R-MI), were drafted in response to the Ocean Commission’s recommendation that an Organic Act be passed for NOAA. (H.R.4607 is Bush’s version of an Organic Act). Ehlers said NOAA Fisheries is under the jurisdiction of the House Committee on Resources and that he will work with Rep. Wayne Gilchrest, Chair of the House Resources Subcommittee on Fisheries Conservation, Wildlife and Oceans, to draft NMFS’ missions and functions. Rep. Sam Farr (D-CA) and other members of the House Oceans Caucus planned to unveil their Big Oceans Bill (BOB). It would not include the transfer of NOAA, but would form the National Ocean Council as the commission recommended. Even more legislation related to the oceans reports is expected in both the House and the Senate.


As Congress was responding to its preliminary report, the U.S. Ocean Commission met recently in D.C. to approve changes in preparation for issuing its final recommendations to Congress and the White House later this summer. Commission Executive Director Thomas Kitsos said there were not any major changes requested in hundreds of pages of comments from 37 governors and five tribal leaders. He said the overall cost estimate of instituting all of the commission’s recommendations is now $1.5 billion in the first year to about $3.9 billion after that. This compares to preliminary estimates of $1.2 billion for the first year and $3.2 billion in subsequent years.


The Senate Indian Affairs Committee moved S 2301, the Native American Fish and Wildlife Management Act, on July 21. The bill, sponsored by Sen. Daniel K. Inouye (D-HA), is intended to improve fish and wildlife management on Indian lands by reaffirming the federal trust responsibility to the tribes. The committee approved a substitute amendment to spell out that Indian tribes would be the only managers of fish and wildlife on their land. The bill also passed committee with the expression that technical amendments would continue to be received. Sections on Alaska and on buffalo had been deleted from the legislation. Also, committee staffers suggested that there be a separate bill to support tribal efforts to acquire lands, to be brought into trust for conservation purposes. The bill would establish a fish and wildlife resource management education assistance and cooperative research program to develop the technical capabilities of tribes and to increase their skills. The bill would set up an Indian seafood and resource marketing assistance program in Commerce to help tribes develop domestic/international markets for seafood, and an Indian fish hatchery assistance program that to be administered by tribal governments. Sen. Inouye said the purpose of the bill is to protect Indian hunting, fishing, trapping and gathering rights, and to provide for the conservation, prudent management and wise use of Native resources.


H.R. 1662 and H.R. 2933 were passed by the House Resources Committee, chaired by Rep. Richard Pombo (R-CA) on July 21. HR 1662, sponsored by Rep. Greg Walden (R-OR) and co-sponsored by 66 legislators, would “amend the Endangered Species Act of 1973 to require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed.” HR 2933, called the “Critical Habitat Reform Act, is sponsored by Rep. Dennis Cardoza (D-CA) would amend ESA and is intended “to reform the process for designating critical habitat under that act.” Supporters said the proposed changes would improve how endangered species and their critical habitats are designated. Environmentalists and some Democrats protested they would render key portions of the landmark law virtually meaningless. “These aren’t minor tweaks we’re talking about,” said Marty Hayden, legislative director of Earthjustice. “These two bills are trying to cut holes in that safety net large enough that an elephant could fall through.” The Cadoza bill would change how critical habitats necessary for the survival of a species are designated. Before such a designation could be made, officials would have to determine that it is “practicable.” The Walden bill would establish a peer review board, chosen by DOI, to more thoroughly collect scientific information on a species before it could be listed. The board would be composed of members recommended by governors and the National Academy of Sciences. The bills were shepherded by Pombo, a rancher/property rights advocate who has long sought to revise the 30-year-old Endangered Species Act.


Following is an excerpt from an NWIFC letter addressed to Pombo regarding HR 1662: “Regardless of its stated intent, this bill would likely decrease the meaningful use of science in the implementation of ESA. In part, this is caused by the glaring omission of tribal scientists in the ESA listing/implementation process. Tribal scientists are knowledgeable about the fish and wildlife resources in our region. Incidentally, the same cannot always be said for the National Academy of Sciences. We have had unfortunate experiences with the “independent science” approach in the past, e.g., forwarding of uninformed decisions, largely by academic scientists with little real world knowledge about the resources and environments they consider.

We fear this legislation is a thinly veiled effort to loosen ESA protections for the sake of additional industry. While we do not oppose the advancement of industry, particularly industry that is environment-friendly, we strongly support the retention and strengthening of protections provided by the ESA. Requirements in this legislation would likely force unnecessary delay in the ESA process which would decrease species protection. It is also worrisome that the bill would establish a more rigid and ponderous peer review system for decisions related to recovery plans under the act.”

Following are excerpts of comments made on HR 1662 from the Ecological Society of America, which represents more than 8,000 scientists: “We are deeply concerned that HR 1662 will not improve the application of science to the ESA. There is no scientific justification for giving greater weight to empirical data over modeling results. Unnecessary listing of species is not occurring. Of the more than 1800 species listed under the ESA, approximately 15 have been found to be not endangered or not a distinct population. An unnecessary listing rate of less than 0.1% should be viewed as a success, not a failure. Additional peer review requirements are an unnecessary burden to the functioning of the ESA. The peer review process called for in HR 1662 is unnecessary and raises serious implementation concerns.”


William G. Myers III, Bush’s nominee for the Ninth Circuit Court of Appeals, was nixed by the Senate in a recent confirmation hearing, following extensive input by environmental organizations and the tribes. Myers, solicitor for DOI, would have succeeded Judge Thomas G. Nelson. Myers, 46, has been the top lawyer at Interior since the summer of 2001. Before that, he was an attorney at a Boise, Idaho, firm where he specialized in natural resources law. He was one of four Idahoans recommended for the court by the state’s senior senator, Republican Larry Craig, in February.

Tribes opposed the confirmation of Myers to the court because he has shown disdain for federal law affecting Native sacred places. As DOI Solicitor, he was the architect of a rollback of protections for sacred native sites on public lands central to the religion of many Native Americans. “In one of only three formal opinions issued by Myers in his two-year tenure at Interior, Myers reached the clearly erroneous conclusion that the Bureau of Land Management does not have authority under the Federal Land Policy and Management Act to prevent undue degradation of public lands and protect sites of religious significance to Native Americans,” said a letter to Congress from NWIFC. The Ninth Circuit encompasses nine western states and other territories, including California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii. It also contains scores of reservations, more than 100 tribes, millions of Indian people, and millions of acres of public land.


Charging that the federal government has proven incapable of correcting serious longstanding problems with its management of Indian trust accounts, Senator Tom Daschle recently introduced, S 2770, a bill to create an independent National Commission on American Indian Trust Holdings to document the truth about the problem and make recommendations on how to fix it. “The United States has broken its word to Indian people, disregarded its treaty obligations, and breached its fiduciary trust responsibility,” he said. “Litigation has been filed, and Administrations of both political parties say the right thing but then do not follow through to redress legitimate grievances. It’s time to forget the excuses and get down to the essential challenge of making things right for Indian trust account holders.”

The Commission would be independent of both the Interior Department and Congress and be comprised of 10 prominent U.S. citizens. The President, the Senate majority leader, the Senate minority leader, the Speaker of the House, and the House minority leader would each appoint two individuals to the panel. The Commission would have the resources to hire professionals with expertise in land and resources management, accounting, federal Indian policy, and trust law, among other disciplines.

“The Commission will be charged with the responsibility of reporting to the President and Congress within one year on how to recoup, if possible, losses Indian accountholders have incurred as a result of government mismanagement of trust assets, and how to prevent any such losses in the future,” Senator Daschle said. “We are looking for specific recommendations on how to fairly account for past mistakes, how to find closure on the trust issue, and how to prevent those mistakes from happening again in the future.”