Federal Update for September 2006

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The mood among Congressional appropriators (known on Capitol Hill as the third party after the R’s and D’s) has not exactly been triumphant as they have been forced to pull in purse strings by a $300 billion federal deficit. 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) was picked up by the Senate in late June, being the first of the FY 2007 spending bills to advance to the opposite house.

Base level funding for Western Washington Boldt Implementation and the Pacific Salmon Treaty still seems ensured, but across the board recessions remain possible. The House bill included $1 million for mass marking and $6 million for the Puget Sound Partnership. The Senate Interior-Environment Appropriations Bill (SR 109-245) includes additional funding of $1 million for TFW, but concerns continue that this amount might be seen as an alternative to the House mass marking monies. The Senate did not increase the national Hatchery Rehabilitation account, leaving the funding level at the $500,000 status quo level. Efforts to achieve a base funding increase have not fared well to date, with no new monies added by the Senate. The shellfish consent decree settlement is back in play, with funding this year expected to be $2 million, to be identified within the Conference from already allocated monies.

A recent water shortage emergency at Neah Bay could be a sign of things to come in Washington as populations surge and rivers and ground water dwindle, particularly during drought-ridden summers. The Makah Tribal Council declared a state of emergency and put strict water restrictions in place on August 29 after its public works department reported that it had less than two days worth of drinking water left in the Tribe’s treatment facility. The drought, heavy visitor traffic and critically low levels in the Waatch River the Educkett Reservoir caused the shortage. In answer to that emergency a 15,000-pound desalination system has been dispatched to Neah Bay from a Navy facility in California. The system, powered by diesel generators, can purify up to 100,000 gallons of salt water per day, and 200,000 gallons of fresh water.

This kind of situation is indicative of important considerations throughout the state, ranging from strict conservation to additional storage capacity. It is also indicative of the growing likelihood that desalination will have to play an expanding role in the future. Bills in the U.S. House, H.R.1071, and in the Senate, S.1016, were intended to help tribes, states and corporations directed by these governments offset the cost of operating desalination facilities. The bills, which very clearly included tribes, contained appropriations for $200 million for 10 years, primarily to offset electrical costs associated with desalination plant operation, and $10 million for research in desalination processes and techniques. The House bill’s primary sponsor is Rep. Jim Davis, D-FL. It passed committee and has been on the Union Calendar since May 26. Rep. Jay Inslee is a co-sponsor. The Senate bill’s primary sponsor was Senator Mel Martinez, D-FL. Co-sponsors include Senators Bill Nelson of Florida and Dianne Feinstein of California. That bill is in the Committee on Energy and Natural Resources.

As consumers go broke at the gas pump big oil companies are making out like bandits—not just from the high price of gas, but from lucrative “royalty relief.” Royalties, fees oil companies pay for oil and gas they extract from public lands and offshore areas, account for at least 25% of all oil and gas produced in the U.S. They range from 12 to 16% of the revenue the oil companies generate and are used to fund federal programs that support historic preservation, recreation and natural resource conservation; the treasuries of the oil-producing states and the federal treasury. When prices hit an all-time low in 1995, oil and gas companies cut back on exploration. Congress then passed the Deep Water Royalty Relief Act (DWRR), relieving companies of their obligation to pay royalties on offshore drilling leases sold between 1996 and 2000, but pegged to specific price thresholds, i.e., when prices rose above $35 a barrel for oil and $4 per thousand cubic feet of natural gas, companies would again pay royalties. In 1998 and 1999, Interior awarded leases that did not include these price triggers. These leases are now coming due and the cost to taxpayers-and benefit to the oil companies-is staggering. Within five years, they will likely yield $65 billion in royalty-free earnings. Over ten years, taxpayers will lose out on $10 billion in royalty payments. Also, in a “test case,” Kerr-McGee is suing Interior under DWRR, challenging limits placed on royalty relief pursuant to the law in leases awarded in 1996, 1997 and 2000. Should the company prevail, GAO estimates this precedent would cost taxpayers an additional $60 billion over 25 years. Congressional opposition to this is growing though, and its efforts appear to be paying off. Recently, companies like Shell Oil have indicated a willingness to renegotiate leases and begin paying royalties, and Kerr-McGee announced plans to temporarily back off its lawsuit, seeking mediation instead.

Proponents ‘drooling’ to open Arctic Refuge Once again, the oil industry’s one-trick spin ponies began chompin’ at the Arctic Refuge bit as soon as there was trouble a-brewing at Prudhoe Bay. ”Drill in the Arctic Refuge” is the mantra they live by and repeat at every opportunity. Never mind that the mess in Prudhoe Bay is just that – a mess. So they want to bring the same scenario to the Arctic National Wildlife Refuge? They consistently return to the table with empty baggage – devoid of visionary thinking and redundantly full of their perennial misconceived Arctic Refuge ”solution.” But there are no real solutions from these supposed conservatives in terms of conservation or even marginally-improved CAFE (corporate automobile fuel efficiency) standards. Elementary school children understand that if you only have 3 cents (3 percent of the world’s oil supply) and spend 25 cents (25 percent of the world’s oil supply), it does not add up. Yet the oil proponents keep coming up with the same ”nonsolution” to drill in the Arctic Refuge, and they keep saying it over and over as if they are praying to some god that will magically fill up the genie’s lamp – and the taxpayers’ supersized gas tanks. Knee-jerk tactics and tedious, inflammatory words are like worn-out tunes used incessantly against those with valid concerns for environmental health and basic human rights of the peoples of the Gwich’in Nation. Protecting the Sacred Place Where Life Begins – the calving and nursery grounds of the porcupine caribou herd – is the unified stand the people of the Gwich’in Nation have stood by and reaffirmed since 1988. The porcupine caribou herd provides the basis of the cultural context for life in the Gwich’in Nation, which has stewarded and shared its history and stories with the herd for hundreds of uninterrupted generations. Drilling in the Arctic Refuge will threaten the entire context of the life of the caribou and the Gwich’in Nation. Drilling activity in the Prudhoe Bay oil fields has repeatedly demonstrated that natural areas are at risk – an average of 504 spills annually, mismanagement of safety regulations and insufficient monitoring. The Alaska Department of Environmental Conservation has documented 4,352 spills between 1996 and 2004, totaling more than 1.9 million gallons of toxic substances. Vast areas of the North Slope of Alaska are already available to development, whereas the ANWR is virtually the last 5 percent of the North Slope that is off-limits to development. In June, 40,000 – 50,000 caribou calves were born in the biological heart of the Arctic Refuge, right where the proponents of drilling are drooling to drill. The feeding frenzy salivates around Section 1002 – the one section of public land that was set aside for further study of its development potential AND for its wilderness values. The 1002 area cannot be developed without the consent of Congress. So far, sound science and good sense have prevailed; but the news of British Petroleum’s mismanagement and resultant shutdown on the North Slope has raised oil fever to a feverish pitch. Let us not rush to judgment and ruin what is left in America’s Arctic, or sacrifice the culture and human rights of the Gwich’in Nation for a penny at the pump 10 years from now. -Luci Beach, Gwich’in

Editor’s note: Ditto the sentiments above on behalf of the Outer Continental Shelf

The National Congress of American Indians will conduct its annual convention in Sacramento October 1-6 in the Sacramento Convention Center. A special pre-meeting will be conducted on Tribal Environmental Issues at 1 p.m. on Sunday, Oct. 1, featuring briefings and discussions on such topics as ESA, renewable energy and the impacts of climate change on Indian Country. NWIFC Chairman Billy Frank, Jr. is slated to make a presentation at this breakout session, and to the NCAI plenary session on Wednesday morning. Also, NWIFC Commissioner Terry Williams is slated to present at the Sunday break out session. The objective of such participation is to elevate and maintain tribal natural resources and environmental issues to a high priority level on a national scale. For more information about the conference, please consult www.ncai.org.

The Senate Committee on Indian Affairs has released a new discussion draft of S. 1439, the Indian Trust Reform Act of 2006. The bill would settle all claims of Individual Indian Money account holders for $8 billion. The bill also creates a voluntary process for Indian tribes to take over greater control of the trust assets on their reservations. The bill would phase out the Office of Special Trustee, and create a single line of authority under an Under Secretary for Indian Affairs. The bill would give the Secretary new authority to consolidate fractionated Indian lands, and add incentives for sale of fractionated lands. The Committee delayed the mark up of the new legislation after Chairman John McCain and Vice Chairman Byron Dirk Dorgan met with Secretary of Interior Kempthorne and Attorney General Alberto Gonzalez. It is clear that the Administration has ongoing concerns with the legislation that the Committee will need to address. In addition to the settlement figure, the Secretary of Interior and the Attorney General appear to have concerns about the future of Indian trust management. The heavy fractionation of Indian land is a significant factor. With over 3.2 million ownership interests in existence and the number continuing to grow, the Administration is concerned about investing in a settlement if the trust management problems for Individual land and accounts are likely to reoccur. Senators McCain and Dorgan are seeking “a full and complete resolution to the entire issue of trust management that has plagued the Department and Indian Country, including resolution of the fractionation of land ownership-a problem at the root of much of the problems that gave rise to the litigation.”

The USForest Service and the Bureau of Land Management have issued a draft supplemental environmental impact statement potentially allowing over 140 timber projects that have been enjoined since January, 2006, to proceed. The EIS sets out measures the agencies are taking to manage old-growth habitat in Washington, Oregon, and California under the Northwest Forest Plan. It responds to deficiencies identified by the U.S. District Court for the Western District of Washington and supports the Agencies’ controversial decision to eliminate the Northwest Forest Plan’s “Survey and Manage Standards,” which require the Agencies to monitor certain species that inhabit old-growth forest. In a related matter, Washington Governor Christine Gregoire has joined governors from other western states in a suit against the Administration for backing off on the closure of thousands of acres of roadless areas along the Cascades. Work shops to follow up on this action are being planned by the Governor’s office and Senior Adviser John Menkowski will address the NWIFC Environmental Policy Committee on September 12 in an effort to engage tribes in the effort. NWIFC Chairman Billy Frank, Jr. joined the Governor in a press conference earlier this year to announce the legal action.

The Native American Graves Protection and Repatriation Act, governing protection of American Indian graves would be amended to allow scientific study of ancient remains discovered on federal lands if the remains have not been tied to a current tribe, under a bill proposed by Rep. Doc Hastings, R-WA. The bill marks the latest step in a dispute sparked by the discovery of Kennewick Man, one of the oldest and most complete skeletons ever found in North America. Indian tribes and researchers battled over rights to the 9,300-year-old remains for nine years before a federal court sided with the scientists, allowing them to study the bones. Hastings says his bill counters efforts in the Senate that would prevent ancient remains from being studied in the future. He cited a case in Nevada where tribal leaders have filed suit against the government to rebury the Spirit Cave Man remains, believed to be more than 10,000 years old. “My proposal protects the rights of present day Native Americans to claim the remains of their ancestors when found on federal lands. At the same time, it reiterates that in cases of truly ancient human remains — such as Kennewick Man — Congress does not intend to block scientific study,” said Hastings. Matthew Tomaskin, legislative liaison for the Yakama Nation, said he was familiar with the proposal, but added that he wished Hastings had consulted the tribes. He stressed that Indian culture dictates it would be improper to dig up or study the remains of someone who was placed somewhere for a reason.

Marine conservation groups are pushing House members to reject a compromise rewrite of the Magnuson-Stevens Act brokered by House Resources Committee Chairman Richard Pombo, R-CA, and key moderate Republicans on his committee. Opposition from the group — a coalition of over 190 environmental organizations, commercial and recreational fishing associations and marine science groups — comes despite an agreement between Pombo and Reps. Wayne Gilchrest, R-MD, and Jim Saxton, R-NJ that hoped to bring oceans advocates and more members on board. Gilchrest had been one of the most vocal critics of the original committee bill. The environmentalists have referred to the rewrite as an inadequate fix that makes the bill worse and fails to address over-fishing and rebuilding stocks.

A worrisomely awaited draft report to Congress on energy rights of way across tribal lands was the subject of public meetings being held in key cities around the country in August. The departments of Energy and the Interior, which drafted the report as a charge of Section 1813 of the Energy Policy Act of 2005, are collecting responses and the final report is scheduled for submission to Congress by September 30. Tribes that derive significant revenue from leasing rights of way to energy companies that construct oil and gas pipelines, power wires and other energy transport infrastructure across tribal lands, generally oppose any change in their current authority to negotiate energy rights of way. Pursuant to a 1948 act of Congress, tribal consent is required for the secretary of the Interior to authorize rights of way leases across tribal trust land.

Tribes will be able to take greater control of their energy resources under new regulations recently announced by BIA. The National Energy Policy Act of 2005 authorized a voluntary program to speed up development on Indian lands. Participating tribes can submit resource plans to the Interior Department in order to gain quick approval of business deals, leases, rights-of-way and other types of energy agreements. Currently, each individual agreement must be reviewed by the department. A federally-approved tribal energy resource agreement, or TERA, will enable tribes to skip that process, but only after following an application process that takes at least one year to complete.

Tribes are working successfully with public and private utilities to deliver energy to millions of families throughout the country, according to a joint report just released by the federal Departments of Energy and the Interior. “Indian reservations are no longer the places where the wires go through,” says former U.S. Senator Ben Nighthorse Campbell. “Today Indian reservations are the places where the wires come from. Tribal governments are taking a significant and growing role as energy producers in this country.” The six-month study performed by the DOE and DOI, with assistance from the Federal Energy Regulatory Commission, was conducted in consultation with Indian tribes, the energy industry, governmental agencies, and businesses and consumers. The report drew three conclusions: 1) It supported tribal consent over Indian lands concerning energy rights-of-way; 2) It found no evidence to support claims that the tribes’ exercise of consent poses any threat to national security or that tribal right of consent might drive up the cost of energy for consumers. It noted, in fact, that the costs of transmitting energy across tribal lands are a tiny fraction of the price that energy consumers pay and 3) It found that the present process for rights-of-way negotiations is working fine. The report’s bottom line for Congress is that there is no need for changing the law. In the report, the DOI and DOE conclude a tribe’s determination of whether to consent to an energy access across its land is an exercise of its sovereignty and an expression of self-determination.