Federal Update for November 2006

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The mid-term election could have some eventual impacts on the appropriations process, as members of Congress prepare to journey to the nation’s capitol for a brief lame duck congress on November 13. Appropriations will be the most critical issue at hand. The continuing resolution, sent to the White House attached to the FY 2007 defense appropriations bill (HR 5631) has been relied upon to fund all appropriations bills not enacted by October 1. The House Interior-Environment Appropriations Bill (HR 5386), which provides the majority of funding to Northwest tribal natural resource programs (principally through BIA Fish and Wildlife Program/Rights Protection category) made it to the Senate Calendar on June 29, where it stalled.

Challenges will continue no matter which party controls the House and/or Senate in 2007, but the election results are unlikely to solve the appropriations puzzle that will confront members of the 109th Congress during a post-election session. Challenges resulting from a $300 billion federal deficit will continue to plague Congress. In fact, neither side is yet talking about how the remaining FY 2007 spending bills will be completed. Some congressional representatives have said there is no realistic chance the Republican-controlled 109th will be able to pass all the remaining appropriations bills individually during the lame-duck session. Democrats have not settled on a plan for handling appropriations if they do win control. When Congress recessed last month, lawmakers had cleared two of 11 spending bills. History, and the short time available for additional appropriations work, suggests that an omnibus package wrapping together the outstanding bills is likely, no matter what happens at the polls.

In 2004, Congress cleared four bills prior to the election and ended up wrapping the remaining nine into the fiscal 2005 foreign operations spending law. Allen Schick, a University of Maryland professor specializing in the federal budget and Congress, predicts that if Republicans suffer big losses on Nov. 7, they will look to an omnibus or a yearlong continuing resolution. If Democrats win control of both chambers in the next Congress, Schick said, “The Republicans are going to be so demoralized and disoriented and leaderless” that it will be difficult for them to hold their lines on appropriations during a lame duck session. Schick predicted that after GOP election losses, Bush would be reluctant to veto an omnibus spending package — even one exceeding the administration’s zealously defended discretionary spending ceiling. “Spend a few billion dollars more, don’t worry about the president. . . . Bush will have to swallow it,” he said.

Tribes have been assured by the Northwest congressional delegation that everything possible will be done to help secure tribal requests—particularly those connected with the House and Senate Science, State, Justice and Commerce committees. The largest issue of interest before these committees continues to be the Pacific Coastal Salmon Recovery Fund. The House proposed funding for PCSR is at a measly $20 million while the Senate proposal is at $90 million. It remains to be seen, as with the Interior-Environment bill, what amounts will ultimately result. One possible scenario would be a “quick fix.” More likely there will be a series of Continuing Resolutions to guide FY 2007 funding until (and if) a larger package is completed in December. (For information on other specific appropriations issues, please see prior editions.)

Senator George Voinovich, R-OH, a self-styled “deficit hawk” and opponent of recent tax cut legislation, is well positioned to join the Finance Committee in the 110th Congress. Depending on the outcome of the elections, Republican vacancies on the tax-writing panel could number as many as two or as few as zero. Voinovich is the most senior Senate Republican at this point who has openly expressed interest in joining the committee. Republican staff and tax-cut backers in the business community said they worry that a Finance Committee that includes Voinovich will become a graveyard for tax-cut legislation, and have begun speculating on possible strategies to thwart his bid. With Senate Majority Leader Bill Frist, R-TN, retiring, and Senator Rick Santorum, R-PA, struggling to keep his seat, as many as two Finance GOP slots could be in play. Tax votes have been problematic for the GOP even with the panel’s two-seat Republican edge — largely because of moderate GOP Senator Olympia Snowe of Maine, who has prevented the committee from passing an extension of capital gains and dividend tax cuts as part of a tax-cut reconciliation package. Voinovich has been philosophically aligned with Snowe and at odds with most Senate Republicans on tax cuts, as a strong proponent of balanced budgets. The fate of the Bush tax cuts, which have a major impact on funding available through other avenues, remains to be seen.

In addition to other changes that could be brought on by the November 7 election, Congressman Norm Dicks, D-WA, stands to take over the House Appropriations Committee and Senator Daniel K. Inouye, D-HA, stands to become the Senate Commerce Committee Chair—if the democrats assume leadership of their respective houses. Also of substantial significance, in the event of a democratic victory in the House, would be the probable replacement of Rep. Richard Pombo, R-CA, by Rep. Nick Rahall, D-WV, as chair of House Resources and the replacement of Rep. William Thomas, R-CA, by Rep. Charles Rangel, D-NY, as chair of the Ways and Means Committee. Some additional probable key changes in the Senate, if the democrats win the majority, would be Senator Byron Dorgan, D-ND, for Senator John McCain, R-AZ, as chair of the Senate Committee on Indian Affairs and Senator Robert Byrd, D-WV, for Senator Thad Cochran, R-MS, as chair of the Appropriations Committee. Additional information on possible changes, in the event of victories by democrats, can be found at this website: www.nationaljournal.com .

With two Western water rights agreements already in hand, the Bush administration sees an opportunity to resolve more tribal claims within the next year, according to Michael Bogert, counselor to Interior Secretary Dirk Kempthorne. Bogert, speaking to a tribal water conference at the University of Oregon in Eugene last week, said negotiations over water disputes in New Mexico, Montana and California involving 11 tribes, bands or pueblos are nearing fruition. He said those talks could lead to agreements resulting in federal legislation — such as a 2004 agreement involving the Nez Perce of Idaho and the Gila River Indian Community of Arizona. Tribal claims represent some of the thorniest, most persistent disputes among Western water fights. Sometimes, the prospect of decades in court prompts the parties to compromise, giving up some part of their claims to gain certainty about future supplies for farming, municipal growth and tribal economic development.

Settlements generally require not only approval of tribal and state officials, but also federal legislation, which can provide money that allows tribes to develop the water guaranteed by an agreement or, as in the case of the Gila agreement, reduce a portion of the local debt to the federal government for a water project. After Kempthorne became Interior secretary, he hired Bogert, who was the Region 10 EPA Administrator, and who was his legal adviser as governor of Idaho during negotiatons over the Nez Perce settlement, in which tribes gave up claims to most Snake River Basin water in exchange for cash, land, environmental improvements and water cutbacks.

Because of his experience as governor, Kempthorne supports “local, on-the-ground solutions … he is not a fan of top-down, dictated outcomes from the federal government,” Bogert said. He said the negotiations that appear ripest are among a total of 19 “looming on the horizon” in the West. Some of the negotiations involve multiple tribes or tribal units. All, he said, are in various stages of progress.

An effort to establish a pilot tribal/state/federal pilot process to pursue water rights settlements in western Washington was the recipient of $150,000 in seed funding from the 2006 state legislature. The effort would provide opportunities to seek agreement in water management in pilot watersheds. Ultimately, the negotiations could take one of several possible paths toward conciliation, e.g., an MOA, adjudication, quantification, etc., but the effort would give the agreement the force of law. The Udall Institute for Environmental Dispute Resolution (a federal agency) is willing to participate in a mediation role, and to serve as the entity through which tribes would volunteer to participate. Criteria for that participation and a scope of work for the institute is being drafted. Governor Gregoire has written a letter of support for the effort, which would work similarly to a NEPA process. A portion of the funding would enable NWIFC to work with the institute and DOE to help facilitate the process and pave the way for passage of a federal bill, which Senator Maria Cantwell has agreed to introduce, to codify the process and open the door for federal appropriations. Cantwell’s sponsorship was based on state/tribal concurrence to participate, which has been established through the Governor’s letter and the legislative budget proviso language. Tribal participation will be on a voluntary basis.

The Bush administration has delayed action on its trust reform regulations amid a controversial proposal to end the federal government’s management responsibilities. The regulations were first published in the Federal Register in August. They focus on probate, land title, land conveyances and other issues related to the management of the 55-million acre Indian estate. But those duties would effectively be wiped away under a Bush plan that would dramatically alter the Indian trust relationship. The administration has proposed to end the federal government’s management duties within 10 years. Tribes and individual Indians have long sought more control over decisions affecting their trust assets. But since the proposal would take the federal government off the hook for past and future mismanagement claims, it has been met with resistance in Indian Country.

“The most profoundly unfair part of this proposal is that the government would actually attempt to end all potential liability for mismanagement on the date of enactment, not only for past conduct, but all future malfeasance,” said Elouise Cobell, the lead plaintiff in the landmark trust fund lawsuit. “In essence, the government would like to provide themselves a blank check to commit fraud or theft and have no liability.” Cobell’s lawsuit, filed in 1996, covers the Individual Indian Money (IIM) trust. About $13 billion has passed through the trust since the early 1900s but the federal government has failed to account for the money as required of a trustee. The Bush administration is pushing Congress to settle all tribal and individual claims. A “briefing paper” released by the Senate Indian Affairs Committee last week outlines proposals to phase out the government’s responsibilities and force consolidation of Indian lands.

Senate staffers have held field meetings to solicit input on the proposed changes. A November 9 Washington, D.C. hearing has been cancelled and replaced with a “tribal leaders” discussion on November 16. Comments can be submitted until January 2, 2007. The period was extended to “ensure that all interested parties, including tribes and individual Indians, have the opportunity to review the proposed rule and prepare their comments.

The U.S. Interior Department has much to worry about, and perhaps much to answer for, on key questions about how it’s doing its job. Two weeks ago, Interior’s Inspector General, Earl Devaney, told a congressional committee, “Simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior.” Devaney was particularly concerned about handling of oil and gas leasing, going back to the Clinton administration in the 1990s, and by the activities of former deputy secretary J. Steven Griles, who was suspected of favoring former lobbying clients. Flawed Gulf of Mexico oil and gas leases signed during the late 1990s may have lost the government more than $1 billion in royalties. And lawsuits pending in Oklahoma City claim the department’s Minerals Management Service has failed to collect full payment of other royalties. In Wyoming, both outside critics and internal memos say the department’s Bureau of Land Management is failing to enforce environmental standards on energy development. Such problems will require a strong response from new Interior Secretary Dirk Kempthorne, a former Idaho governor, if the department is to repair its credibility and properly fulfill its mission of both conservation and recovering appropriate value from development. Kempthorne has yet to signal broad policy directions for Interior, but in one area his decisions have been encouraging.

Kempthorne and Bomar face major challenges, including an estimated $5 billion backlog of park maintenance projects. And as the service looks forward to its centennial in 2016, managers will have to face the issue of what the parks mean to the American people in the 21st century. As reported in Monday’s Denver Post, overnight stays in the national parks have been declining for a decade. The Interior Department should commit itself to maintaining and improving the parks in such a way that they will remain an attractive destination for vacationing families and outdoor enthusiasts.

The National Congress of American Indians has launched a grassroots web campaign on its website, www.ncai.org/indianfairness, to give a voice to thousands of supporters and to increase awareness of their effort to support a resolution to the Indian Trust Settlement issue. The launch of this web campaign, titled “Indian Fairness,” was originally timed to coincide with the pending markup on Senate Bill 1439, which was taken off the Senate agenda recently. NCAI is asking Congress to move forward with “The Indian Trust Reform Act of 2006,” which would end years of litigation and create an $8 billion settlement to return funds that rightfully belong to Indian account holders.

The House Energy and Commerce Committee recently approved a bill strengthening safety regulations governing oil and gas pipelines in October, partially in response to leaks in BP’s Prudhoe Bay, Alaska pipeline earlier this year, and its subsequent shutdown of the largest producing oil field in the nation. The bill, HR 5782, authorizes $329 million over the next four fiscal years to enhance the inspection and safety programs. It also would strengthen state “one-call” programs, which are aimed at avoiding construction and excavation accidents involving pipelines. Legislation to improve pipeline safety was already working its way through Congress when low-pressure petroleum pipelines owned by BP leaked in Alaska. The leaks gave new impetus to the bill and prompted additions to the legislation requiring tighter inspection standards on the low-pressure pipelines. Low pressure pipelines are defined as a pipe which carries liquid held at less than five times the pressure level that the pipe is rated to accept. Energy and Commerce Committee Chairman Joe Barton, R-TX, said the pipeline failures in Alaska were “inexcusable.”

The Senate Commerce, Science and Transportation Committee recently moved to combat drought by moving to approve S 2751, a bill that would create a broad-based national plan to better forecast and track bouts of the natural disaster. The legislation would create an $11 million National Integrated Drought Information System, which would include an internet portal, for farmers and meteorologists to exchange information and analysis of how to prevent major damage to industries ranging from agriculture to tourism. The newly created information system will be administered by NOAA.

For many years, fishery officials have tried everything to keep California sea lions from munching on threatened salmon, from yelling at them to setting off firecrackers. Nothing has worked. Two Washington state congressmen recently announced that they are going to enlist Congress for help. Sea lions are protected by federal law. But Republican Doc Hastings and Democrat Brian Baird said they will introduce a bill that would let officials from the two states, as well as Indians, quickly obtain permits to kill a limited number of sea lions that are going after salmon, specifically in the Columbia River. “These sea lions have bellied up to an endangered salmon buffet and they will be eating thousands and thousands of fish right here this spring if we don’t do something about it,” Hastings said. When the Marine Mammal Protection Act was passed in 1972, there were about 50,000 California sea lions. Oregon officials say their numbers have grown to 300,000 in the Columbia River alone. The bill proposed by Baird and Hastings could allow the states to kill some of the sea lions as early as next spring. Michael Garrity, associate director of American Rivers, objects to the bill, saying dams and the degradation of salmon species’ habitat is more to blame for their decline in numbers.