Federal Update for January 2010

APPROPRIATIONS (President Obama’s Spending Proposals Anticipated)

Rob Nabors, deputy director of the Office of Management and Budget, said the Obama Administration has gone line by line through the budget to identify programs that are not working or a lower priority. Spending proposals for some programs will decrease while others increase. “The liberal criticisms will be somewhat muted when they actually see the details of what we are proposing,” Nabors said. “Right now, people are all afraid their favorite program has been gutted.” Nabors estimates the proposal would save $250 billion over the next decade, as non-security discretionary spending falls to the lowest share in the past 50 years.

Details of the spending proposal were to be released when the White House offers its budget blueprint for fiscal 2011. But the spending freeze has the potential to affect key environment and energy programs that advocates say are in need of big spending increases next year, including land acquisition, climate change adaption, ocean planning, U.S. EPA climate regulations, energy labs and public land management. “There is a need for more spending for natural resources and the environment, especially when you look at the situation they have been put under over the last eight years,” said Brian Moore, who tracks the federal budget for the Audubon Society. “The environment is a priority, and unfortunately it takes money to solve these problems.”

The administration is expected to propose spending increases for some environmental programs. For instance, Nabors said today that the budget would continue to make investments in “clean energy.” But some lawmakers are concerned it could chill spending for public lands. Rep. Raúl Grijalva, D-AZ, who chairs the National Parks, Forests and Public Lands Subcommittee, has expressed concern that funding for natural resources and public lands, which increased in the 2010 budget, could be frozen or reduced and vowed to fight against the possibility. “That’s what we’re going to have to defend,” Grijalva said. “Because you know the Administration is talking about a real deficit reduction effort in the budget and you know, we’ve been the source even through the Bush administration — the public lands have been the source of the reduction for many, many years.” Grijalva also said the Obama administration must keep in mind its liberal backers and their support for conservation. “I think part of what we’re having problems with, is this is a constituency, primarily a Democratic constituency, that supports these [conservation] efforts,” he said. “We need to do some things so that we energize the constituency so they’re there with us when election time comes. I think it would be politically, not just from the policy side, but politically very stupid of us not to move aggressively on some public lands issues.”

Altogether, the spending crackdown would affect a relatively small portion of overall federal spending. Non-military discretionary spending makes up about 25 percent of the budget. The freeze would not touch some of the largest areas of federal spending — including the Defense Department, Homeland Security, Veterans Administration and international affairs, as well as the fast-growing entitlement programs like Social Security, Medicare and Medicaid. The White House will provide a list of programs to Congress, but it will be up to lawmakers to decide whether to move forward with any spending cuts. Congress could override the request and move ahead with spending increases for next year. Democrats on the Budget and

Appropriations committees have said over the past month that they would be wary of efforts to freeze the budget, especially before the economy fully recovers. But the proposal is already gaining traction with at least some moderate Democrats. Sen. Mark Udall of Colorado said today that he would “wholeheartedly agree” with the three-year freeze. “Government should live by the same budgeting rules that hardworking Colorado families follow every day,” Udall said.

A spokesman for House Interior Appropriations Chairman Norm Dicks, D-WA, said it is still unclear how the proposal will affect his subcommittee’s work because the details of the proposal are still at the White House. Further, he said it will also depend on how Congress would handle the overall freeze when setting budgets for each of the appropriations bills. -Greenwire


After years of flat budgets for many environmental programs under the Republican Congress, Democrats gave major spending increases last year to U.S. EPA and resource agencies. Environmentalists had hoped the fiscal 2011 budget would continue that trend, and agency officials themselves had identified many programs they wanted to expand. At the Interior Department, leaders had hoped to revive land-acquisition programs that had sat dormant and create safe havens for species facing a warming climate. Interior Secretary Ken Salazar has said he wants major increases for the Land and Water Conservation Fund. And Fish and Wildlife Service Director Sam Hamilton has said he would like to expand the National Wildlife Refuge system and new climate change adaptation programs.

Oceans advocates have said the budget for the National Oceanic and Atmospheric Administration needs to double to address its growing demands to address climate change, weather forecasting and fisheries enforcement. The agency also faces ballooning spending demands for its weather and climate forecasting satellites, which are entering a critical procurement phase that could cost billions of dollars. Meanwhile, EPA has plans to write new climate regulations and repair and modernize the nation’s sewer and drinking water systems, which are more than 50 years old. Because EPA this year received a substantial 36 percent budget increase over 2009 levels, observers say the agency is better positioned to weather the spending freeze. EPA’s fiscal 2010 budget is $10.3 billion, a significant boost after the agency’s budget hovered for several years around $7.5 billion. “Maintaining a flat budget for the next two years from those levels is obviously not welcome and we all hope the economy can turn around,” said John Walke, clean air director at the Natural Resources Defense Council, “but I certainly don’t think that it will be fatal to the agency’s mission by any means.” But Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration, said climate change programs could be pinched if resources are constrained.

“If CO2 becomes a regulated pollutant, and at the same time EPA’s budget is frozen, that could be a huge problem for industry writ large because everybody has said it’s going to require a lot more resources to do this,” Holmstead said. “EPA is already a bottleneck for anybody who wants to develop anything.”

Alan Rowsome of the Wilderness Society called the move “sound fiscal policy. What it means is that some difficult decisions have to be made,” he said. “But I think from an environmental point of view there are a lot of programs that will continue to grow our economy, create green jobs and help us transition to a cleaner future, that are investments that can still be made and should be made. The Administration hopefully will continue down that path.” Rowsome said the 2010 budget showed that the Obama administration strongly supports environmental policy and wants to make a big impact on conservation programs and investments. “In the end, I think the administration is doing the right thing,” Rowsome added. “Spending is a bit out of control. … The environmental programs and projects are going to fit that bill of being important for our future and can help strengthen our communities and make jobs.”


House Science and Technology Chair Bart Gordon, D-TN has announced his agenda for the year—the centerpiece of which will be reauthorizing the America COMPETES Act. He also listed a NOAA organic act among his legislative priorities. An organic act would give the agency congressional authorization for the first time since it was created by President Nixon, via executive order, in 1970. Congressional authorization-long recommended by oceans commissions and advocated for by ocean and environmental groups-would give lawmakers the ability to set NOAA priorities and expand its authority. In addition, an organic act could improve NOAA’s ability to collaborate with other agencies, make it more difficult for Congress or the executive branch to eliminate NOAA, as Republicans threatened to do to the entire Commerce Department in the 1990s. At present, NOAA could be negated with an executive order, although such an effort is deemed unlikely and would be complicated by the many bills granting NOAA authority over fisheries and scientific research. The agenda also includes granting NOAA more authority to deal with climate change or the recommendations from the presidential ocean task force, and/or establishing an ocean zoning system. Another priority will be to establish NOAA as its own agency, independent of the Commerce Department. Although many ocean advocates say this would be ideal, it is unlikely that Congress would take such bold action.

Most other federal agencies already have congressional authorization, which lays out their mission and organizational framework. NOAA, meanwhile, functions under its executive order and numerous issue-specific statues. Over the past 40 years, lawmakers have introduced over 20 measures to codify the agency. One of the primary challenges to this effort has been getting lawmakers to prioritize it and to cooperate among the multiple committees with jurisdiction. Indeed, while Energy and Environment Subcommittee Chair Brian Baird, D-WA, is planning action on the NOAA organic act early in the year, Gordon acknowledged that the Science Committee represents only the first step in a process that may not be completed this year. Ocean groups say an act would only make an impact if it addressed all NOAA issues, many of which fall under the jurisdiction of other committees. But significant progress could be made in 2010, with House Natural Resources Chairman Nick Rahall, D-WV, expressing interest in working on the issue this year. In the Senate, the Commerce Committee is largely in charge of NOAA oversight-although the chamber’s calendar is already quite full, Commerce has remained open to advancing a bill.


NOAA Administrator Jane Lubchenco has directed the agency’s enforcement and legal offices to take steps to promote greater transparency in law enforcement, ensure fairness in penalties, and improve lines of communication with commercial and recreational fishermen. The action comes in response to a Commerce Department Inspector General nationwide review that recently outlined several recommendations to improve NOAA’s enforcement operations. Lubchenco requested the review in June 2009 after hearing concerns about NOAA enforcement from some members of the fishing community and Congress. One of the recommendations is for NOAA to develop more uniform policies and procedures where appropriate. To that end, NOAA’s new general counsel, Lois Schiffer, has been asked to lead a high level review of existing policies and procedures, and recommend ways to increase coordination and consistency, transparency, accountability, and fairness nationwide in agency law enforcement efforts. NOAA will also convene a national summit on enforcement policies and practices to hear from constituents and experts in the field. The summit will include representatives from the commercial fishing industry, the recreational fishing community, environmental groups, academic institutions, and outside experts from law enforcement, as well as significant participation by NOAA’s Office for Law Enforcement and the Office of the General Counsel for Enforcement and Litigation.


President Barack Obama delivered the 2010 State of the Union Address for 2010 on January 27, doing his best to inspire the nation to stand with him as it looks forward to a better day. The speech was seen by millions of people on all major news networks, focusing on getting the country back to work, taking charge of its purse strings and doing what is necessary in key areas such as caring for our elders, supporting education and addressing the environment. The speech is archived at www.WhiteHouse.gov.

The Ninth Annual State of Indian Nations Speech was delivered by NCAI President Jefferson on Friday, January 29: President Keel delivered the speech at the National Press Club in Washington DC, and it was broadcast and archived on the NCAI website at www.ncai.org. This was the first address for Keel, who was elected last October. He discussed NCAI’s priorities for the second session of the 111th Congress and for the Obama administration; economic development; jobs for Native Americans; and the roles for tribal governments in the U.S. economy and society.

President Obama recently gave himself a solid B+ for his first year’s performance in the White House, and it seems that most tribal members would concur, at least most of the time. Most Republicans would have a different response altogether. So what do the enviro’s have to say? In their way of thinking, how much of his clean-energy agenda has he and his Administration been able to accomplish in their first 360 days? Quite a lot, as it turns out. Carl Pope, Executive Director of the Sierra Club, for example, has written about the Administration’s great success at undoing much of the environmental damage done by the previous White House occupant, and that all-in-all, it’s been, “the best first year on the environment of any president in history.”
Although the economy, war and health care have dominated discussions about what President Obama has or hasn’t accomplished, he has–with little notice from the public– been steadily rewriting a major area of American policy — the environment. The impact has ranged from global warming to gas mileage rules. After methodically reversing many of the Bush administration’s environmental policies, and with little help from Congress, Obama is drawing criticism from Republican and industry leaders who say his actions threaten job growth, and cheers from environmentalists who call the changes overdue. Pope says Obama’s first year of environmental achievement even outperformed that of Teddy Roosevelt. “Most presidents have done their best environmental work late in their term. This is a very, very strong opening.” Critics predict many of the changes will end up in court. “There’s no doubt they have been super active. They seem to be throwing a lot of policies at the wall and seeing which ones stick. But not all of them are going to stick,” said Frank Maisano, a spokesman for Bracewell & Giuliani, a Houston law firm industries. Obama didn’t use the word “environment” in his inaugural speech Jan. 20, 2009. But as president, he has:

  • Increased gas mileage standards for cars and light trucks 40 percent, from today’s 25 mpg to 35 mpg by 2016. The announcement in May came as part of Washington’s bailout of Detroit.
  • Signed a bill establishing 2.1 million new acres of federally protected wilderness, largest bill since 1994
  • Blocked Bush administration rules on offshore oil drilling and endangered species protections
  • Blocked Bush administration rules to open the California coast and 77 federal sites near Utah’s Arches and Canyonlands national parks to new oil and gas drilling.
  • Begun a process in December in which the EPA will, for the first time, restrict the amount of greenhouse gases industry can release.
  • Signed a bill in March establishing 2.1 million new acres of federally protected wilderness, the largest wilderness bill since President Bill Clinton signed the Desert Protection Act in 1994. The bill bans logging, mining and road-building on federal forests and deserts in nine states, including portions of Joshua Tree and Sequoia national parks and ancient bristlecone pine forests in the eastern Sierra.
  • Announced tougher new national smog standards via the EPA.
  • Reversed Bush administration rules allowing more snowmobiles in Yellowstone and fewer federal agency reviews of endangered species.
  • Issued EPA rules requiring large U.S. ships to cut soot emissions by 85 percent.
  • Signed a stimulus package that included more than $50 billion in funding and tax credits for renewable energy projects. It includes billions to weatherize federal buildings, provide grants to companies building solar and wind farms and fund research on biofuels and other technologies.

Most of the changes have come through executive branch rules, rather than laws passed by Congress. As a result, they could be overturned by future presidents. Although the House passed a bill setting up a mandatory cap-and-trade program for greenhouse gas emissions, for example, it is stalled in the Senate. And although he flew to Copenhagen to personally negotiate for a new global warming treaty, Obama failed to secure an agreement with binding reductions. Environmental groups have grumbled that Obama upheld Bush rules to remove gray wolves from the endangered species list in the upper Midwest, Idaho and Montana. He also has not moved as fast as they would like to stop a type of coal mining in West Virginia known as “mountain top removal.” Republicans also have criticized many of the moves. House Minority Leader John Boehner, R-Ohio, has repeatedly called proposed global warming rules “a national energy tax” that would raise gas prices and power bills for middle-class families. “It really is a new day,” said Mary Nichols, chairman of the California Air Resources Board. “When things clear up a little bit and people can focus on things other than whether they have a job, he’ll get more credit.”


The Departments of Interior and Justice and Eloise Cobell have announced a settlement of the ongoing Cobell trust accounting litigation on behalf of Individual Indian account holders. The terms include $1.4 billion dollars for settlement of accounting and mismanagement claims. This will be divided into two parts. Each account holder would receive $1000 for historical accounting claims. Resource mismanagement claims will be settled under a court-approved formula. The lawsuit must be modified to add resource mismanagement claims (not a part of the current litigation). The settlement includes $2 billion for addressing fractionation of individual Indian land. Small fractionated interests would be purchased from Indian landowners on a voluntary basis, and the consolidated land will be turned over to tribes under the terms of the Indian Land Consolidation Act. A Secretarial Commission on Indian Trust is being created to make recommendations and oversee a performance audit of trust systems and controls. This provision appears to be intended to review the sunset of the Office of Special Trustee. The settlement anticipates that Congressional approval will be required to use the federal Judgment Fund for the settlement. In addition, the overall terms of the settlement must be approved by the U.S. District Court. There are many more details about the settlement available on the Department of Interior website at www.doi.gov and at www.cobellsettlement.com.

The proposed settlement of the litigation represents a significant breakthrough on an issue that has troubled Indian Country for many decades. The settlement amount is lower than was expected when the litigation began, but is significantly higher than the $456 million awarded by Judge Robertson after a trial in 2008. The higher amount likely represents the value of adding trust mismanagement claims to the accounting claims. In addition, the funds for consolidating fractionated lands under tribal ownership will help to resolve longstanding land management problems and will increase economic development opportunities.

President Obama said, “With this announcement, we take an important step towards a sincere reconciliation between the trust beneficiaries and the federal government and lay the foundation for more effective management of Indian trust assets in the future. I came to Washington with a promise to change how our government deals with difficult issues like this, and a promise that the facts and policies, and not politics, will guide our actions and decisions. I urge Congress to act swiftly to correct this long-standing injustice and to remember that no special appropriations are required. I congratulate all those in Indian Country that have waited for this news, and join them in waiting for a quick conclusion to the process.”


Scott Brown, an ultra conservative Republican, will take the U.S. Senate seat long occupied by Teddy Kennedy, the last living brother of former President John Fitzgerald Kennedy. Brown will be the first Republican Senator from Massachusetts in decades. Senator John McCain, R-Arizona, was quick to congratulate him on his victory and to say that his victory sent a strong message that Americans are furious with the liberal leadership in Washington. “Their out of control spending and proposed takeover of health care are destructive to our country and we must continue to fight against it,” said McCain. “I look forward to welcoming Scott as a colleague when he comes to Washington to join our battle against runaway spending and government run health care. But, unfortunately, there is now talk of Democrats employing Washington D.C. political games to move their agenda forward regardless of the peoples’ will. The Democrats are determined to do whatever is necessary to move their big government plans forward,” said McCain.

President Obama and other Democratic leaders may find it more difficult to successfully pass several key pieces of legislation following the crucial loss in the Massachusetts Brown’s victory has significant ramifications for the current administration’s agenda as he now represents the GOP’s 41st vote in the Senate, breaking the Democrats filibuster-proof majority in Washington. Many experts believe that Obama’s healthcare reform bill AND cap-and-trade environmental plan are both hanging in the balance after the upset.

“I have no interest in sugar coating what happened in Massachusetts,” said Senator Robert Menendez, D-NJ, Chairman of the Democratic Senatorial Campaign Committee. “There is a lot of anxiety in the country right now.” The GOP victory in Massachusetts, a historically liberal state where registered Democrats outnumber Republicans 3 to 1, could signal an abrupt shift in Congressional power come the elections this November. “When there’s trouble in Massachusetts, there’s trouble everywhere, and they know it,” Brown said following the win.


Rep. Brian Baird, D-WA, will not run again, after serving in the U.S. House from Washington’s District 3 since 1996. Says, Rep. Baird, “Serving our country and representing the people of Southwest Washington in Congress has been the highest honor and greatest responsibility of my life.  The time has now come to pursue other options, other ways of serving. There is much yet to be done for our region and our nation and I fully intend to be part of that work during the remainder of my term in office and in new ways when that term has ended. Some of the candidates lining up to succeed Baird in this critically important race include TVW Founder/former State Legislator/former Chief of Staff for Governor Booth Garder Denny Heck and State Senator Craig Pridemore.


After 30 years in Congress, Senator Byron Dorgan has announced that he will not seek re-election this year. “It has been a long and wonderful career made possible by the people of North Dakota. And I am forever grateful to them for the opportunity,” said Sen. Dorgan. “Although I still have a passion for public service and enjoy my work in the Senate, I have other interests and I have other things I would like to pursue outside of public life. I have written two books and have an invitation from a publisher to write two more books. I would like to do some teaching and would also like to work on energy policy in the private sector. Let me be clear that this decision does not relate to any dissatisfaction that I have about serving in the Senate. Yes, I wish there was less rancor and more bipartisanship in the U.S. Senate these days. But still, it is a great privilege to serve and I have the utmost respect for all of the men and women with whom I serve.Tribes across the country have said that Sen. Dorgan will truly be missed.  He is a man who clearly and consistently demonstrated great compassion for Indian issues.  Tribal leaders have also wondered out loud who on the committee could take his place as chair of the Indian Affairs Committee. Answers to the question have been scarce. Chairman Dorgan sent a letter to Tribal leaders and organizations on January 13, 2010, briefly describing the Committee’s agenda for the second session of the 111th Congress, which begins January 19, 2010.  Please click on the following link to view the letter.


Rep. Vic Snyder, D-AR, has announced he will not seek an eighth term, choosing instead to focus on his family, which includes four young boys. “I have concluded that these election-year forces are no match for the persuasive and powerful attraction of our three one-year-old boys under the leadership of their three-year -old brother, and I have decided not to run for re-election,” he said. More details will be available soon online at www.congressdaily.com .


A popular state attorney general with an anti-Indian sovereignty reputation is making a bid for the U.S. Senate. Richard Blumenthal announced Jan. 6 that he will seek the Senate seat held by fellow Democrat Chris Dodd, who has served five terms, and who said a day earlier he would not seek re-election in the 2010 race. Blumenthal, who has been the state’s attorney general since 1991, is known by many tribes as an aggressive advocate against tribal sovereignty, federal recognition, and tribal governments’ jurisdiction on tribal land, and for leading other state attorneys general to join him in court cases that aim to diminish tribal sovereignty. For example, Blumenthal intervened in San Manuel v. the National Labor Relations Board in which the U.S. Court of Appeals for the District of Columbia Circuit Court disregarded 75 years of tribal exemption and ruled that federal labor laws apply on sovereign Indian land. He also led a coalition of more than a dozen state attorneys general to intervene in the Narragansett Indian Tribe’s efforts to place 31 acres of land into trust for elder housing. The years-long case wended its way through district court and the 1st Circuit Court of Appeals, which ruled in the tribe’s favor, and ended up last year as Carcieri v. Salazar in a U.S. Supreme Court decision that said the Interior secretary does not have the authority to take land into trust for tribes recognized after the 1934 Indian Reorganization Act. In November, Blumenthal testified in front of the House Resources Committee against legislation to fix Carcieri v. Salazar. He recommended, among other things, that “Congress should have sole authority to approve post-1934 tribal trust land requests.” In Connecticut, Blumenthal has fought the federally recognized Mashantucket Pequot Tribal Nation and Mohegan Tribe on land claims, land into trust, taxation, jurisdiction on tribal land over labor issues, sovereign immunity, smoking bans in casinos, and other issues. But he is perhaps most notoriously known for his successful effort in 2005 to reverse the federal acknowledgment of the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation. Chief Harry Wallace of the Unkechaug Indian Nation, a New York state recognized tribe that has not sought federal acknowledgment, was dismayed by the news of Blumenthal’s possible election to the Senate. “I don’t think that’s good for Indian country. I think he’d certainly be an enemy of sovereignty. I think he will be someone who will bring his prejudicial notions of Indian tribes and Indian nations and his political influence against the tribes of Connecticut, and spread that further across the country. I think he’ll be an impediment to sovereignty and issues of land claims, taxation, economic development, security – all these things.”


President Obama’s recent directive to Federal Agencies, to develop new programs that improve consultation with and services to tribes is resulting in action, from one agency to another. As an example, the Justice Department will implement new policies in American Indian tribal lands in an effort to combat the high level of crime there, Attorney General Eric Holder has announced. He ordered the 44 U.S. Attorneys who serve in districts that have tribal lands to meet and consult with tribes in their district annually, develop an operational plan addressing public safety in Indian Country, work closely with law enforcement to pay particular attention to violence against women in Indian Country, make these crimes a priority, provide summaries of their operational plans to the Office of the Deputy Attorney General and make those summaries available to the tribes in their districts. The DOJ received more than $237 million in its fiscal year 2010 budget for Indian Country prosecutions and criminal investigations. The Department will use $6 million of the funds to hire at least 35 Assistant U.S. Attorneys and 12 FBI victim specialists to handle American Indian cases. “The public safety challenges we face in Indian Country will not be solved by a single grant or a single piece of legislation. There is no quick fix,” Holder said in a statement. “While today’s directive is significant progress, we need to continue our efforts with federal, state and tribal partners to identify solutions to the challenges we face, and work to implement them.”

Let’s Make Indian Country Count
Census 2010 is upon us

“The goal of the 2010 Census is to paint a ‘Portrait of America.’ Because the American Indian and Alaska Native population is relatively small, every Native person who is counted makes a huge difference in getting that portrait right. We know Indian country faces many hurdles to an accurate Census count. Past Censuses have missed more than 1 in 10 Native people. The Brookings Institution recently found that for every person missed by the Census, the community loses more than $1,000 every year. The future of Indian country will be built on a foundation of reliable and accurate Census data. As the president of the National Congress of American Indians, I encourage tribal leaders to get the word out to Native communities about how important the Census is to our future generations. I also urge all local leaders across the nation to encourage their community members to participate in Census 2010.” -NCAI President Jefferson Keel