Federal Update October 2007

With the August congressional recess ending September 4, there has been no real movement of appropriations bills since last month’s Federal Update report. For example, H.R.2643, the House Interior Appropriations bill, and Senate counterpart S.1696 both still await action on the Senate Calendar. As for natural resource management-related appropriations specific to the Northwest, all NWIFC FY 2008 requests have long since been submitted to Congress and testimony provided to the appropriations committees. H.R. 2643, which is Congressman Norm Dicks’ first major spending bill, tops Bush’s request for the BIA budget.  Likewise, the Senate bill is slightly higher than the President’s budget.  The House bill lacks earmark language, but the Senate bill does contain some earmarks.

Both the House and Senate bills include $7 million for the shellfish settlement, but from there they differ.  The House figure is $4 million over the President’s request, but still short of restoring budget cuts. There will have to be a compromise on this amount with the Senate, as well as earmark strategies.

The Senate bill includes an earmark for TFW/FFR of $1.74 million and $1.8 million to restore the Pacific Salmon Treaty Implementation dollars cut in the President’s request.  Neither bill includes mass marking monies, but Congressman Dicks has said he will see that the BIA provides funding to the tribes for this project. The bill doesn’t add funding for hatchery maintenance/rehabilitation. It reduces the forestry account that supports SSHIAP, but tribes have been assured by the BIA that SSHIAP will continue to be funded.

The House bill includes $15 million for the Puget Sound Partnership in EPA’s budget, but the Senate only has $1 million. The Senate has included $90 million in the Commerce bill for the PCSRF, while the House bill has only $65 million.

The House-Senate Conference for both the Interior bill and the Commerce bill will likely occur in November or early December.  In the meantime, we are operating under a continuing resolution extending monies until November 16. Depending on the veto situation, a budget could be in place soon, at least for Interior. The alternative may be another CR situation, like FY 2007. To view the status of appropriations bills, click on http://thomas.loc.gov/home/approp/app08.html.

President Bush has announced that he will present a five-year budget proposal on February 5, 2008, which will show reducing budget deficits and a balanced budget by 2012. He said the budget will achieve balance while addressing critical needs. He also called for earmark reform and said that his tax relief program has spurred robust economic growth and rising wages. For more information, visit http://www.whitehouse.gov/infocus/budget/2008/index.html.

Early in the 2007 U.S. Senate Session, Sen. Maria Cantwell introduced legislation to help provide the level of protection needed to avert disastrous oil spills on the coast and in Puget Sound. One Valdez-like spill could prove catastrophic to fisheries throughout the region, and a tug at Neah Bay has kept many such disasters from occurring. Cantwell’s bill, which would provide needed funding for an adequate year ‘round tug, was subsequently folded into the Coast Guard Reauthorization Bill. The Coast Guard reauthorization bill has passed the Commerce Committee and the committee report is nearly done. Once it is done, the report will be sent to the Senate floor for a vote.  But, according to Cantwell aid Jeffrey Waters, there are obstacles to overcome. One of the strongest of these may be opposition from Senator James Inhofe, R-OK.  Senator Cantwell’s main concern is figuring how to deal with this obstacle without compromising too much (or at all) on the bill’s original intent.  Generally, one senator can block a bill, because most things pass the Senate by unanimous consent and do not have to be set for floor time, which is a precious commodity and difficult to get.  If the opposing senator does block the bill’s path to unanimous consent, and the Senate doesn’t give the bill floor time for a floor discussion and vote, the bill may die. Another challenge is that the companion bill in the House apparently has no oil spill provisions.  Rep. Norm Dicks has made efforts, and says he will continue to make efforts to add the oil spill provisions to the House version of the bill—but, so far, to no avail.

DOI’s Inspector General has launched an investigation into a $149 million computer system that could be considered a "profound failure."  In a 131-page report, Inspector General Earl E. Devaney said he became aware of the problems associated with the system while investigating the Minerals Management Service. The agency commissioned the system in 1999 to handle over $8 billion in oil and gas payments on federal and Indian lands. But eight years and $149 million later, the Minerals Revenue Management Support System doesn’t appear to be living up to its goals. Interior employees have complained the federal government, tribal governments and individual Indians have lost millions of dollars because the system doesn’t work as promised.

Some typical employees’ complaints about the system have been that it takes twice as long to complete common tasks and it failed to bill and collect interest from energy companies who drill on federal and Indian lands. MMS managers had a scapegoat though—the Cobell trust fund litigation. In December 2001, a federal judge ordered Interior to remove its Indian trust systems from the Internet due to inadequate security. The disconnect kept the MRM Support System offline for three months. But in interview with the Inspector General, MMS managers repeatedly blamed the litigation for creating a "backlog" of interest bills owed by energy companies. Even after MMS got back on the Internet in March 2002, the Bush administration waited more than four years to address the backlog. The Interior Department has a troubled history with computer systems. In the 1990s, the Bureau of Land Management scrapped a $400 million records system because it never worked properly. BIA has spent more than $40 million on the Trust Asset Accounting and Management System but it’s not working well either. The department’s overall computer system has been rated one of the worst in the government due to lax security. The Bush administration says it has spent over $100 million to improve the Indian trust systems but they remain off the Internet to this day.

The Senate Finance Committee has approved a new tax credit for property owners who help protect endangered species, marking a rare agreement between property-rights advocates and environmentalists. The credit would offer landowners an incentive to donate conservation easements or take more active steps to restore a species’ habitat. It would fill a gap in the Endangered Species Act by helping to protect critical habitat on private land, said Sen. Blanche Lincoln, D-AR, who worked on the bill with Sen. Michael D. Crapo, R-ID. She said it provides a dedicated stream of funding “to the very people who are in the best position to address these challenges, and that’s the owners of private land.”

Chairman Max Baucus, D-MT., said he does not know when the bill will reach the floor. It could be a unanimous-consent candidate because of its broad support, he said. The bill would prevent property owners from claiming tax benefits for actions they were required to take under existing law. It also would make permanent a deduction for conservation easements and extend a deduction for rehabilitating contaminated sites. The only major opposition to the bill had nothing to do with endangered species. It came in response to the committee’s decision on how to pay for the $3.2 billion bill. The entire amount would come from a change in the tax treatment of so-called sale-in, lease-out deals. A 2004 tax law changed the rules for such transactions completed after March 12, 2004. The Senate Finance bill would remove that date and apply the new rules retroactively to all such deals.

The bill also includes a provision sponsored by Ken Salazar, D-CO, designed to help farmers avoid capital gains taxes on water rights, e.g., those who choose to relocate from one part of the state to another and sell one set of water rights to buy another.

Domenici To Retire: Republican Sen. Pete Domenici, 75, has announced that he will not seek re-election to a seventh term. Domenici’s decision is related to his health and not the controversy that followed his acknowledgement that he had contacted former U.S. Attorney David Iglesias about a prosecution and then urged the Bush Administration to fire him, part of a controversy that led to the eventual departure of former Attorney General Alberto Gonzales. Domenici would be the fifth Republican senator to pass on re-election in 2008, joining Sens. John Warner of Virginia, Chuck Hagel of Nebraska, Larry Craig of Idaho and Wayne Allard of Colorado.

BUT Craig Changes Mind: Sen. Larry Craig, R-ID, says he’s not quitting after all, and that he will stay in the Senate and finish his term despite a Minnesota judge’s ruling that he could not withdraw his guilty plea to a disorderly conduct charge in an airport sex sting.
Secretary Johanns: Bush has accepted the resignation of Agriculture Secretary Mike Johanns, a step expected to be followed soon by Johanns’ announcement that he will seek the seat of retiring GOP Sen. Chuck Hagel in Nebraska. Bush named Deputy Agriculture Secretary Chuck Conner to serve as acting Agriculture secretary.
Rep. Udall:  Tom Udall, D-NM says he will seek another term in the House rather than run for the Senate seat being vacated by Republican Sen. Pete Domenici. Udall says that while he thinks he could win the Senate election, he could better serve New Mexico by gaining seniority and taking more of the leadership role in "the people’s House." He also said staying in the House would allow him to "assert my authority on the Appropriations Committee."

Gover Selected to Head NMAI: Kevin Gover, Pawnee and former head of the BIA, has been named to direct the National Museum of the American Indian upon the retirement of Rick West. The appointment is not without controversy. Gover fought the Cobell v. Babbitt Trust Case for years in court, contributing mightily to a contempt citation and a $600,000 fine. In his capacity as deputy secretary in charge of BIA, he was the trustee for Indian lands and in charge of responding to an order from Federal Judge Royce Lamberth to produce records and documents of the mineral, timber, and energy earnings of the Indian trust lands. The court was told by the agency that it was diligently gathering the records—at the same time that Interior employees were destroying 162 boxes of pertinent documents in a Maryland warehouse. Also, only two NMAI trustees were part of the Smithsonian’s search that led to Gover’s appointment. The rest of the museum’s board members, including Eloise Cobell, were never informed of Gover’s candidacy, much less his selection until it was publicly announced. Cobell has complained loudly and publicly, saying the Smithsonian had treated the NMAI board (statutorily established as an advisory board) as “wooden Indians,” on display for show but without a voice in the most important administrative decision affecting the museum.

The American Constitution Society for Law and Policy (ACS) has distributed a brief  by Jay Austin and D. Bruce Myers, Jr., Senior Attorneys at the Environmental Law Institute, entitled, "Anchoring the Clean Water Act: Congress’s Constitutional Sources of Power to Protect the Nation’s Water". It says Supreme Court rulings have left serious questions about the breadth of the Clean Water Act’s coverage, prompting Congress to consider legislation (such as the Clean Water Restoration Act of 2007) to clarify the Act’s intended scope. Such legislation has raised questions about the bounds and sources of Congress’s power to protect the nation’s waters. This brief identifies the constitutional powers Congress can draw upon to protect waters nationwide—the Commerce Clause and the treaty power, as well as the powers of the Necessary and Proper Clause, combine to give Congress broad constitutional authority to regulate the nation’s waters in a comprehensive fashion. ACS is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals.  The issue brief is available online at http://www.acslaw.org/node/5456.

The United Nations Declaration on the Rights of Indigenous Peoples was adopted on September 13 by the United Nations General Assembly. The vote was 143 to 4 with 11 abstentions. The United States, Canada, New Zealand, and Australia voted against the Declaration. The declaration makes a unique and much-needed contribution to international human rights standards. While human rights documents generally arise from a tradition that addresses individual rights, the UN Declaration both affirms individual rights and focuses on Indigenous Peoples’ collective rights, such as the rights to traditional lands and resources, the right to be free from genocide and forced relocation and the right to maintain languages, cultures and spiritual beliefs. The declaration emphasizes the rights of Indigenous People to cultivate and strengthen their own institutions, cultures and traditions in keeping with their own needs and aspirations. The Declaration underwent a 25 year debate—longer than any other international agreement in UN history.

Many of the 400 million Indigenous people in the world are amongst the most impoverished and marginalized of people anywhere. Conditions of First Peoples’ lives and cultures frequently go unaddressed. The declaration could create a strong platform and powerful inspiration to address Indigenous Peoples’ longstanding concerns and help ensure the flourishing of indigenous health and economies.