[Congressional Record Volume 143, Number 58 (Wednesday, May 7, 1997)]
[Senate]
[Pages S4045-S4067]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             CLOTURE MOTION

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will read.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on S. 672, the 
     supplemental appropriations bill.
         Trent Lott, Ted Stevens, Mike DeWine, Bob Bennett, Tim 
           Hutchinson, Richard G. Lugar, Pete Domenici, Pat 
           Roberts, Connie Mack, Frank H. Murkowski,

[[Page S4046]]

           Richard Shelby, Craig Thomas, Chuck Grassley, 
           Christopher S. Bond, Michael B. Enzi, and Jeff 
           Sessions.


                            CALL OF THE ROLL

  The PRESIDING OFFICER. By unanimous consent, the call of the quorum 
has been waived.


                                  VOTE

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on S. 672, the supplemental appropriations bill, shall be 
brought to a close?
  The yeas and nays are required.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The yeas and nays resulted--yeas 100, nays 0, as follows:

                      [Rollcall Vote No. 57 Leg.]

                               YEAS--100

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden
  The PRESIDING OFFICER (Mr. Allard). The Senate will please come to 
order.
  On this vote, the yeas are 100, the nays are 0. Three-fifths of the 
Senators duly chosen and sworn having voted in the affirmative, the 
motion is agreed to.
  Mr. STEVENS. Mr. President, Senator Byrd and I are overwhelmed by the 
support of the Senate for this bill. I hope that will be demonstrated 
in the hours to come.
  Mr. CHAFEE. Mr. President, might we have order, please? It is very 
difficult to hear.
  The PRESIDING OFFICER. The Senate will please come to order.
  The Senator from Alaska.
  Mr. STEVENS. Mr. President, we would like to work up a schedule, 
rotating from one side to the other with amendments. I want to state to 
the Senate the amendments that have been filed touch or concern every 
one of our 13 subcommittees. Those subcommittees' staffs are standing 
by now to confer with any Member who really wants to pursue one of 
these 109 amendments that have been filed.
  I ask the Chair to help us keep order. We would anticipate, for the 
information of the Senate, with the concurrence of the two leaders, 
that we would proceed with the D'Amato amendment and then the Bumpers 
amendment and, if possible, another amendment and have our first series 
of stacked votes sometime around 12:30 to 1 o'clock.
  We will keep the Senate informed, but I do want the Senate to know we 
will try to stack votes so that none will occur prior to approximately 
12:30 to 1 o'clock.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
York.


                           Amendment No. 166

   (Purpose: To rescind JOBS Funds, extend the transition period for 
          aliens receiving SSI funds, and for other purposes)

  Mr. D'AMATO. Mr. President, I ask unanimous consent that the Reid 
amendment be laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. D'AMATO. I ask that amendment No. 166 be called up and that 
Senator Feinstein's name be added as an original cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       The Senator from New York [Mr. D'Amato], for himself, Mr. 
     Chafee, Mr. DeWine, Mr. Specter, Mrs. Feinstein, and Mrs. 
     Boxer, proposes an amendment numbered 166.

  Mr. D'AMATO. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 44, strike all after line 19, through line 2 on 
     page 45, and insert in lieu thereof the following:


                  ``JOB OPPORTUNITIES AND BASIC SKILLS

                              (RESCISSION)

       Of the funds made available under this heading in Public 
     Law 104-208, there is rescinded an amount equal to the total 
     of the funds within each State's limitation for fiscal year 
     1997 that are not necessary to pay such State's allowable 
     claims for such fiscal year.
       Section 403(k)(3)(F) of the Social Security Act (as in 
     effect on October 1, 1996) is amended by adding after the 
     ``,'' the following: ``reduced by an amount equal to the 
     total of those funds that are within each State's limitation 
     for fiscal year 1997 that are not necessary to pay such 
     State's allowable claims for such fiscal year (except that 
     such amount for such year shall be deemed to be 
     $1,000,000,000 for the purpose of determining the amount of 
     the payment under subsection (1) to which each State is 
     entitled),''.''
       On page 75, strike all after line 10 through line 22 on 
     page 80, and insert in lieu thereof the following:

           ``TITLE VI--SUPPLEMENTAL SECURITY INCOME AMENDMENT

     ``SEC. 601. EXTENSION OF SSI REDETERMINATION PROVISIONS.

       ``(a) In General.--Section 402(a)(2)(D) of the Personal 
     Responsibility and work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1612(a)(2)(D) is amended--
       ``(1) in clause (i)--
       ``(A) in subclause (I), by striking the date which is 1 
     year after such date of enactment and inserting in lieu 
     thereof September 30, 1997; and
       ``(B) in subclause (III), by striking the date of the 
     redetermination with respect to such individual and inserting 
     in lieu thereof September 30, 1997; and
       ``(b) Effective Date.--Subsection (a) takes effect as if 
     included in the enactment of section 402 of the Personal 
     Responsibility and Work Opportunity Act of 1996 (8 U.S.C. 
     1612).''

  Mr. D'AMATO. Mr. President, on behalf of myself, Senator Chafee, 
Senator DeWine, Senator Feinstein, and Senator Specter, I call up this 
amendment because, notwithstanding the attempt--and I appreciate it--by 
the Appropriations Committee initially to deal with a very vexing 
problem, the problem of immigrants and the problem of legal immigrants 
and the problem really dealing with legal immigrants, most of whom are, 
a good percentage are disabled and who are elderly who would otherwise 
be cut off August 22, notwithstanding that they came into the country 
legally, that they are currently receiving benefits, that if these 
benefits were to be cut off in some States, they would be faced with 
little, if any, help.
  In other States, the burden would be a tremendous one on some of the 
local municipalities and the States. This amendment would continue the 
existing funding of those legal immigrants--let's understand, we are 
talking about people who came into this country legally; we are talking 
about people who obeyed the law; we are talking about, for most cases, 
senior citizens, elderly, and disabled--to continue their SSI benefits.
  Mr. President, it seems to me that this is a prudent way in which to 
handle what could otherwise be a very disastrous problem for 500,000 
people, most of whom are elderly, in this country. That is a half-
million people. That is a lot of people who would be facing tremendous 
hardship, many who have no one in a position to be of any kind of 
assistance. For others, without their SSI payments and cut off from 
food stamps, their families would be in perilous situations even 
attempting to give them modest help.
  Let me say that I am deeply appreciative of the leadership that has 
been displayed by the Senate majority leader, the chairman of the 
Senate Appropriations Committee, and our distinguished colleague from 
West Virginia, in attempting to deal with this problem in a way that 
will give us additional time.
  Again, we are not talking about people who came into this country 
illegally, people who are trying to take advantage of the system. We 
are taking an opportunity to give the Congress of the United States and 
the President sufficient time to work out a program that will see to it 
that the system is not abused but, by the same token, see to it that 
people are not disadvantaged as a result of the significant work of the 
Congress in bringing about workfare as opposed to welfare.

[[Page S4047]]

  Let me say what the situation is in terms of New York. In New York, 
we are talking about 80,000 legal immigrants who now would be facing 
termination of benefits--80,000. Again, Mr. President, the vast number 
who are senior citizens, many of them have tremendous language 
barriers, many of them have been in this country for a number of years, 
some not long enough to qualify for Social Security benefits, all of 
them here legally. Mr. President, 70,000 of these people are in the 
city of New York.
  What an incredible impact that would be to the city, to the State, 
and to other communities. As I look around, I see my colleagues from 
California, who have the same kind of problem. I see my colleague from 
Rhode Island. It is a tremendous problem that would be created. That 
was never our intent in terms of reforming the welfare system. Ours was 
to create an opportunity for workfare, not a system that entraps 
people. Ours says to those who are capable of going out and holding a 
job or getting into a job training program that you just cannot take 
advantage of the system. But I do not believe it was one in which we 
envisioned just cutting off those people who cannot do for themselves. 
We are a compassionate country. We are a country which is ready and 
recognizes the need to help those citizens who cannot do for 
themselves.
  So, let me say this. The Social Security Administration estimates 
that SSI recipients who received notices of possible termination of 
benefits are made up of--let me just give you an idea who these half a 
million people are: 72 percent are women; 41 percent are over the age 
of 75; 18 percent are over the age of 85. Are we going to say to those 
people, 18 percent over the age of 85, ``go out and get a job''? What 
are we going to do?

  Mrs. BOXER. Will the Senator yield on that point for a question?
  Mr. D'AMATO. Certainly.
  Mrs. BOXER. Mr. President, I thank the Senator from New York for 
offering this amendment. I say to him, and I am sure Senator Feinstein 
will amplify this, that this is so crucial to our State, as he has 
said, and I know the Senator is aware--and I will put this in the form 
of a question--that in the budget agreement that was reached among all 
parties, this issue was recognized. What the Senator from New York is 
doing is carrying over this agreement, that these people need the 
certainty of assistance because they are very old, they are very frail, 
they are very disabled, and what the Senator is doing is, in essence, 
saying that that agreement ought to really apply right now and these 
people should not be under the threat of a cutoff. So he is restoring 
SSI to legal immigrants until all the new details are worked; am I 
correct in that?
  Mr. D'AMATO. That is correct. What we are doing is providing the 
Congress, as well as these people, an additional 6 weeks from August 
22. A good number of these people during this period of time will be 
qualified as citizens, understanding, if you look at the age category 
of them, many of these people are elderly, there was never an impetus. 
It is very difficult. They have language barriers, disabilities, 
problems in communication and transportation. The immigration offices 
are swamped with those people who are attempting and who are eligible 
for citizenship.
  When you look at this, if close to 20 percent are over 85, we are 
talking about almost 100,000, and most of them women, who are over the 
age of 85, who may have disabilities, who may have language problems 
just trying to qualify them for citizenship. In some cases, they will 
not have to take the ordinary test. But how do we get them that 
information? How do we get them there in time? It cannot be done 
between now and August 22. New York City Mayor Giuliani is engaged in 
an outreach program to contact many of these elderly immigrants and 
give them an opportunity to qualify for full citizenship; therefore, 
they would not have to be concerned with the cut off in benefits.
  So for all of those reasons, this additional time will also give us 
and our colleagues an opportunity--as well as the administration--to 
examine what the program will be in the fullness of time after October 
1.
  Mrs. BOXER. Mr. President, I ask the Senator to add me as a 
cosponsor.
  Mr. D'AMATO. Mr. President, I ask unanimous consent that the Senator 
from California, Senator Boxer, be added as an original cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. D'AMATO. Mr. President, I thank Senator Chafee for his support 
and leadership and, again, the leaders of the Appropriations Committee, 
Senator Stevens, and the ranking minority member from West Virginia, 
Senator Byrd, for their leadership, for their compassion in 
understanding and finding the resources to make this extension 
available. Senator Byrd has always demonstrated a great compassion and 
concern for senior citizens in particular, and they are the ones who 
would be most victimized if we were not to continue this action. I 
yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I rise to support the D'Amato-Chafee resolution. I am 
very pleased to be a cosponsor. I want to point out that two cities in 
this Nation are impacted more than any other, and that is the city of 
Los Angeles and the city of New York. In California alone, there are 
310,000 legal immigrants currently receiving SSI benefits. Under the 
present law, they all go off on August 22, regardless of need.
  I want to clear the air somewhat, because the 
administration proposal, accepted by the Budget Committee, does not 
cover elderly legal immigrants. In other words, if you are 85 years old 
and monolingual in another language, you cannot get a job, but come 
August 22, under the agreement, you would be out on the streets. Either 
you are homeless or else it is a transfer to the local government to be 
picked up by the counties' general assistance grant.

  This proposal of Senator D'Amato's essentially takes that August 22 
deadline and extends it to October 1, giving us time to work with the 
administration, work with the Appropriations Committee and try to see 
if there is not a better solution.
  If only disabled are covered, which is currently the case under the 
proposed bipartisan agreement, this means that only refugees and 
asylees who have exhausted the 7 years would be eligible for SSI only 
if they are disabled. This impacts 61,360 people in California; 60 
percent of those who are disabled and 40 percent of the elderly would 
not be affected by this legislation.
  So we have a ways to go in reconciling what is really out there in 
terms of problems of people who are elderly and the proposal that is 
part of the bipartisan agreement. The D'Amato proposal extends that 
deadline by 2 months and gives us an opportunity to work this out. I 
think it is extraordinarily important that that happen.
  Additionally, I pay my compliments to the Senator from Rhode Island. 
Senator Chafee and I have a bill which would extend SSI for all of 
those who are presently covered by SSI, not prospectively, not for 
newcomers, but for those people already in this country for whom we 
have certain responsibilities who are unable to have any other source 
of income to support themselves. Our bill, I think, is the long-term 
solution that is the most viable.
  So I thank Senator D'Amato--he is also a cosponsor of the Chafee-
Feinstein bill--for offering this, and I am very hopeful that a 
dominant majority of this body will see the wisdom in adopting it.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.


                           Amendment No. 145

   (Purpose: To rescind JOBS Funds, extend the transition period for 
          aliens receiving SSI funds, and for other purposes)

  Mr. D'AMATO. Mr. President, for the purpose of technical adjustment, 
I ask unanimous consent that the clerk instead report No. 145 in place 
of amendment No. 166 and that that be the pending amendment.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. D'AMATO. Mr. President, so that the Record properly reflects the 
cosponsors, in addition to myself, they are Senator Chafee, Senator 
DeWine, Senator Specter, Senator Feinstein, Senator Kohl, Senator 
Moynihan, and Senator Kennedy as well.

[[Page S4048]]

  The PRESIDING OFFICER. Without objection, amendment No. 166 is 
withdrawn.
  The amendment (No. 166) was withdrawn.
  The PRESIDING OFFICER. The clerk will report amendment No. 145.
  The legislative clerk read as follows:

       The Senator from New York [Mr. D'Amato], for himself, Mr. 
     Chafee, Mr. DeWine, Mr. Specter, Mrs. Feinstein, Mr. 
     Moynihan, Mrs. Boxer, Mr. Kohl and Mr. Kennedy, proposes an 
     amendment numbered 145.

  Mr. D'AMATO. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 44, strike all after line 19, through line 2 on 
     page 45, and insert in lieu thereof the following:


                  ``JOB OPPORTUNITIES AND BASIC SKILLS

                              (RESCISSION)

       ``Of the funds made available under this heading in Public 
     Law 104-208, there is rescinded an amount equal to the total 
     of the funds within each State's limitation for fiscal year 
     1997 that are not necessary to pay such State's allowable 
     claims for such fiscal year.
       ``Section 403(k)(3)(F) of the Social Security Act (as in 
     effect on October 1, 1996) is amended by adding after the `,' 
     the following: `reduced by an amount equal to the total of 
     those funds that are within each State's limitation for 
     fiscal year 1997 that are not necessary to pay such State's 
     allowable claims for such fiscal year (except that such 
     amount for such year shall be deemed to be $1,000,000,000 for 
     the purpose of determining the amount of the payment under 
     subsection (1) to which each State is entitled),'.''
       On page 46, after line 25, insert the following:
       ``Public Law 104-208, under the heading titled `Education 
     For the Disadvantaged' is amended by striking 
     `$1,298,386,000' and inserting `$713,386,000' in lieu 
     thereof.''
       On page 75, strike all after line 10 through line 22 on 
     page 80, and insert in lieu thereof the following:

           ``TITLE VI--SUPPLEMENTAL SECURITY INCOME AMENDMENT

     ``SEC. 601. EXTENSION OF SSI REDETERMINATION PROVISIONS.

       ``(a) In General.--Section 402(a)(2)(D) of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1612(a)(2)(D) is amended--
       ``(1) in clause (i)--
       ``(A) in subclause (I), by striking `the date which is 1 
     year after such date of enactment' and inserting in lieu 
     thereof `September 30, 1997'; and
       ``(B) in subclause (III), by striking `the date of the 
     redetermination with respect to such individual' and 
     inserting in lieu thereof `September 30, 1997'; and
       ``(b) Effective Date.--Subsection (a) takes effect as if 
     included in the enactment of section 402 of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1612).''

  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, first, I congratulate Senator D'Amato for 
his work on this amendment which will mean so much to so many people 
who he has well described as being the frailest in our society.
  I also pay tribute to Senator Feinstein with whom I have worked on a 
program similar to this for the long-term solution, as she pointed out. 
It may well be that we will turn to that when we start the new fiscal 
year.
  I also want to salute Senator DeWine, who is not on the floor at this 
moment. I hope he will be here soon. But I wanted to pay tribute to him 
because he has worked very hard on it.
  Mr. President, I would like to extend my thanks to the distinguished 
chairman of the Appropriations Committee, the Senator from Alaska, and 
the distinguished ranking member of that committee, the Senator from 
West Virginia, who have agreed to accept this amendment. I am very 
appreciative of that.
  I am speaking on behalf of 3,750 legal immigrants--legal immigrants--
in my State who would face the loss of these SSI benefits but for the 
passage of this legislation, which I hope will be accepted in the House 
likewise. That group of 3,750 Rhode Island seniors, as the Senator from 
New York has described, fits in that typical pattern of 18 percent 
being over 85 and so forth.
  Mr. President, this is a good amendment. What it does, it gets us 
through the remainder of this fiscal year and gives us a little 
breathing time.
  Mr. President, as you know, in the underlying bill there is a block 
grant of $125 million. This replaces that. I think that is wise because 
a block grant would cause a lot of problems in its distribution, trying 
to set up a new system to get the money out. The continuation of the 
existing system of the SSI benefits is, I believe strongly, the right 
way to go.
  So this is an occasion where I think we can all celebrate a little 
bit. I was strongly supportive of the welfare reform bill that we 
passed last year. I believe in it. I think it is working.
  At the time when we foresaw the difficulties that were going to come 
up under this particular group, I supported legislation to take care of 
them. That did not pass. I believe it was the legislation of the 
Senator from the State of California. It did not pass. But now we are 
attacking that problem.
  As I mentioned before, I think it is coming out in a very 
satisfactory way. So I want to thank the Chair. And, again, I do want 
to point out that Senator DeWine is deeply interested in this, as is 
Senator Specter. Senator DeWine may be on the floor a little later. I 
want to extend my appreciation to his work on this and also to the 
leadership of both parties in the Senate for permitting this to be 
accepted.
  Thank you very much.
  Mr. D'AMATO. Mr. President, I understand that there may be somebody 
in opposition. But at this point, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. D'AMATO. Mr. President, let me simply say, I am just going to 
look at one statistic again and put it in terms of not just saying 18 
percent of all of those are over the age of 85. We are talking about 
90,000 people, seniors--90,000. Many of them, again, are disabled. Many 
of them have problems with the language. All of them are here in this 
country legally. Let us understand that. Let us understand that three-
quarters of those people, better than 65,000, are women.
  Are we really going to say to grandmothers, grandparents, to the 
elderly, to the frailest of the frail, ``No more will we meet even your 
minimum needs''? That is not what this country is about. That is 
certainly not what I intended nor do I think any Members intended when 
we voted for the reform of the welfare system. I voted for that. I 
think we did the right thing.
  I think we can make this bill a much better bill by not only 
continuing this program now, but then we will argue, and it will give 
us an opportunity for those to come forward and have a fuller discourse 
in the future. But certainly, certainly, we should not terminate it 
now.
  Again, I want to thank the chairman of the Appropriations Committee, 
Senator Stevens, and the ranking member, Senator Byrd, for their 
understanding and their support of this legislative correction. It is a 
correction. It is one. And there is nothing wrong with saying we can do 
it better, we erred at this point in time. I did.
  Let me tell you, I was concerned that there were many people who were 
taking advantage of the system. There were those who said and pledged, 
``Yeah. We'll take care of our elderly, our relatives,'' and instead of 
doing that, they gamed the system and put them right into SSI. Well, 
that is wrong. We should see to it that that does not take place. But 
for us now to say, with one fell swoop all of them will be 
disadvantaged who are presently receiving, that is something that I 
would not in good conscience support.
  I yield the floor.
  Mr. DeWINE. Mr. President, I am pleased to join with my colleagues 
from New York and Rhode Island, Senator D'Amato and Senator Chafee, in 
offering this amendment to extend Supplemental Security Income [SSI] 
coverage to disabled, legal immigrants until the end of the fiscal 
year. This amendment is consistent with the recent agreement between 
the congressional leadership and President Clinton to allow disabled, 
legal immigrants to continue receiving SSI and Medicaid benefits.
  First, let me commend my friends from New York and Rhode Island, 
Senator D'Amato and Senator Chafee, for their extraordinary efforts on 
behalf of legal immigrants. It is safe to say that the bipartisan 
agreement to restore SSI and Medicaid benefits to disabled, legal 
immigrants would not have been made without their leadership.
  Plain and simple, this is an issue of fairness--fairness to those who 
played

[[Page S4049]]

by the rules to become legal immigrants, only to see those rules 
changed to their detriment.
  While the budget agreement provides hope to legal immigrants, a 
temporary measure is needed to protect those immigrants who would stand 
to benefit from the budget agreement. That's the purpose of the 
amendment we are offering today. As my colleagues know, the 1996 
welfare law bans legal immigrants from receiving SSI benefits beginning 
August 22, 1997--1 year after the day the law was signed. This 1-year 
transition period was designed to give legal immigrants time to obtain 
citizenship without losing eligibility, and to provide State and local 
governments time to adjust to increased demand for general assistance.
  The Social Security Administration estimates that roughly 525,000 
legal immigrants currently receiving SSI could lose benefits under 
current law. Of that number, roughly 3,000 are from Ohio--and more than 
half of those immigrants, roughly 1,700 reside in Cuyahoga County. Many 
of these immigrants will seek and obtain citizenship and thus, can 
still receive SSI. However, many disabled immigrants currently 
receiving Federal support may not be able to become citizens. It is 
this population that stands to lose the most if current law is not 
changed.
  The Jewish Community Federation of Cleveland brought to my attention 
several families that would be affected if the law is not changed. Lev 
and Ada Vaynshtock, ages 64 and 60 respectively, came to this country 
from Moldova in 1991. They reside in Cleveland.
  Ada has passed her citizenship exam and is eagerly waiting to become 
a U.S. citizen. Lev's memory is getting worse and worse after open-
heart surgery, and may never become a citizen. Both currently are 
eligible for SSI. Ada certainly will be able to retain her SSI 
eligibility when she gains citizenship, but Lev stands to lose this 
eligibility. If he outlives Ada, he will have no benefits at all--
unless we act to change the law.
  They are just one of many elderly Russian families--families that 
because of mental or physical disability, stand to lose their SSI 
benefits later this summer. It is for them, and for countless others, 
that compelled a bipartisan group of Senators to seek changes in the 
law to protect elderly people.
  Let me emphasize to my colleagues that our efforts on behalf of 
disabled legal immigrants does not alter the key policy changes made in 
last year's welfare and immigration reform bills. Our efforts do not 
alter the basic policy change made last year that sponsors of legal 
immigrants need to take more financial responsibility for legal 
immigrants. Newly arrived immigrants still will have to abide by the 
1996 welfare and immigration laws.
  Again, we're here to help those already here, those already disabled 
immigrants who played by the rules. Although Congress and the President 
have made a commitment to help this population, it may not be until the 
beginning of the fiscal year before that relief is provided. We cannot 
hold disabled, legal immigrants hostage to the legislative process, 
especially when they stand to lose benefits in a few short months.
  Again, our efforts have been bipartisan. I want to commend the 
chairman of the Appropriations Committee and the chairman of the 
Finance Committee, Senator Stevens and Senator Roth, and of course our 
majority leader, Senator Lott, for working to place a temporary measure 
in the existing bill. The amendment we offer today simply expands that 
effort, to ensure that all immigrants who stand to retain their 
benefits because of the budget agreement are not denied benefits while 
the details of this agreement are worked out. What this amendment 
offers is certainty--the certainty that these immigrants will continue 
to receive benefits for an additional 6 weeks.
  In short, the budget agreement reflects our long-term commitment to 
fairness. By passing this amendment, we can take a short-term first 
step to realize that long-term goal.
  Mr. MOYNIHAN. Mr. President, I rise as an original cosponsor of the 
amendment offered by my colleague from New York to extend Supplemental 
Security Income [SSI] benefits to elderly and disabled legal immigrants 
through the end of September. Under last year's welfare legislation, 
which I opposed, these individuals are to lose their SSI benefits in 
August. The budget agreement recently reached would restore SSI 
benefits to many of these individuals. I support that effort, although 
more should be done. This amendment will ensure that there is no 
interruption of SSI benefits while legislation necessary to implement 
the budget agreement is considered.
  It is a welcome measure of compassion where there has been too little 
of late.
  Mr. KOHL. Mr. President, I rise today as an original cosponsor of the 
Chafee-D'Amato amendment regarding SSI benefits to legal immigrants and 
refugees. I am pleased to support this important first step to correct 
a significant mistake of last year's welfare bill.
  As you know, this amendment would extend the eligibility of disabled 
and elderly legal immigrants to the Supplemental Security Income 
Program. These people, including approximately 5,000 in my home State 
of Wisconsin, were scheduled to lose their SSI benefits in August of 
this year. As my colleagues from California, New York, Rhode Island, 
and elsewhere have explained, many others would have been similarly 
affected all across the country.
  While many legal immigrants will become citizens by the August 
deadline, without this amendment, State officials estimate that 
approximately 3,000 elderly and disabled legal immigrants living in 
various Wisconsin communities would have been cut off from their only 
source of support. These are people who cannot work and who would not 
be able to live or take care of their families without outside help. If 
the Federal Government abandoned them, their most basic needs--shelter, 
food, medical help--and the accompanying costs, would have fallen on 
the shoulders of, and quite potentially overwhelmed, State and local 
resources.
  Wisconsin has already decided to continue medical assistance to SSI 
recipients. And the recently hatched budget deal contains even more 
comprehensive remedies for the next fiscal year--two encouraging bits 
of news. Nonetheless, the extension of benefits from August to October 
will provide crucial help until those long-term remedies take effect.
  Mr. President, I supported the new welfare law. Policy reforms to 
move people from welfare to work were laudable and long overdue. Yet 
throughout the welfare debate I also supported numerous attempts, all 
of which failed, to soften the bill's restrictions on benefits to legal 
immigrants and refugees.
  Simply put, the welfare bill went too far. It was too harsh on legal 
immigrants who come to this country with every intention of working 
hard and contributing to our economy and cultural melting pot. It also 
was too harsh on refugees and asylees who come to this country to 
escape persecution in their native lands. To this latter group, the 
United States made and continues to make a unique commitment of 
assistance and guidance to help them rise above adversity and build a 
new life for themselves and their families.
  Wisconsin has been enriched by many different ethnic groups 
throughout its history. That said, I would like to take this occasion 
to discuss a population that has been hit particularly hard by the 
welfare changes--the Hmong and other highland peoples--who came to 
Wisconsin and other parts of the country as refugees from Southeast 
Asia. Since coming, they have faced the challenges of integrating into 
American society. Many arrived in this country illiterate because they 
did not have a written language at home and have had a difficult time 
fulfilling the educational requirements of the citizenship application. 
In August, many of the Hmong would have lost the SSI benefits that they 
have relied upon to cope with these challenges.
  Like most legal immigrants before and since, the Hmong and their 
children have strengthened our communities. But some of my colleagues 
may not know of the Hmong's invaluable contribution to the United 
States before ever setting foot in Wisconsin or anywhere else on 
American soil.
  Mr. President, Americans owe a debt of gratitude to the Hmong. Most 
of them fled their native country at the

[[Page S4050]]

end of the Vietnam war, fearing retribution for having fought for the 
United States alongside American soldiers and helping us through what 
was a very difficult time in our history.
  While no disabled or elderly legal immigrants should be left without 
help, I am particularly pleased to cosponsor the Chafee-D'Amato 
amendment on behalf of the Hmong. It would be unconscionable to abandon 
the Hmong in their time of need. They put their lives on the line in 
defense of all that Americans hold dear--our freedom, our prosperity, 
and our way of life. Today, Congress has taken a very small step toward 
repaying their priceless service to all Americans.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. The Senator from California sought recognition on this 
amendment?
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the Chair.
  I would just like to add to my earlier comments with some of the 
specific numbers from each of the big States of people that would not 
be covered by the bipartisan budget agreement.
  These are elderly people.
  In California it is 163,900. In Florida it would be 44,310. In 
Illinois 13,360; in Massachusetts 13,410; in New York 65,340; and in 
Texas, 32,640. These are people who are above the age of 65.
  It is my understanding that the administration, with Members in the 
other House, may have reached an agreement whereby they would agree to 
try to certify some of these people as disabled. But, nonetheless, 
these are the people, at least in the statistics of the Social Security 
Administration, who would be dropped off come August 22 for sure right 
now.
  I think this is living testimony, in terms of numbers of people, to 
the argument that Senator D'Amato, Senator Chafee, and I are making 
that: Let us extend this by 2 months and see what we can do to effect a 
reasonable system where people will not become homeless or a major 
transfer onto county general assistance rolls.
  I thank the Chair and yield the floor.
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I hope all Members understand, however, 
we are entirely in agreement with statements made so far concerning 
these legal immigrants who will be covered by this procedure. 
Hopefully, pursuant to the budget agreement, we will continue a policy 
of caring for people who are here legally now.
  But I hope everyone, including the Immigration Service, is on notice 
it applies to those who are here now. In the future, I hope that we 
will enforce the commitment made by those who sponsor legal immigrants 
to maintain those people that they sponsor in the event they become 
indigent and cannot support themselves. That is the commitment that we 
must see carried forward once again in our basic law of protecting 
immigration.
  Again, it is my desire at this time, Mr. President, to ask the Senate 
to set aside the D'Amato amendment. This amendment and the Bumpers 
amendment will be voted upon sometime before 1 o'clock today. That is 
our hope. There may be further proceedings with regard to the D'Amato 
amendment. I do not want to jeopardize them. But I do ask unanimous 
consent that we temporarily set aside the D'Amato amendment at this 
time so we may proceed with the Bumpers amendment.
  The PRESIDING OFFICER (Mr. Hutchinson). Without objection, it is so 
ordered.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that the Reid 
amendment be temporarily set aside while I offer an amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 64

 (Purpose: To strike section 310, relating to R.S. 2477 rights-of-way)

  Mr. BUMPERS. Mr. President, I call up amendment No. 64.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arkansas [Mr. Bumpers] proposes an 
     amendment numbered 64.

  Mr. BUMPERS. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 50, strike lines 1 through 11.

  Mr. STEVENS. Will the Senator yield at this point?
  Mr. BUMPERS. Yes.


                         Privilege of the Floor

  Mr. STEVENS. Mr. President, I ask unanimous consent that Anne 
McInerney be given privileges of the floor during the duration of this 
bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUMPERS. Mr. President, for Members of this body who have not 
dealt with this issue on the Energy and Natural Resources Committee, 
this is a slightly complex amendment. I am going to simplify it as best 
I can. We have had several hearings in the Energy Committee on it, but 
it deals with an issue that sounds so bizarre you would not believe it 
was actually on the statute books of this country.
  In 1866, Congress passed a bill which has become popularly known as 
R.S. 2477, Revised Statute 2477. What that law did, as part of the 1866 
mining law, was to validate public highways built across unreserved 
public lands.
  That does not mean much, so here it is. The United States owns 350 
million acres of land in the lower 48 States. Since 1866, we have set 
aside millions and millions of acres in wilderness areas, national 
parks, monuments, all kind of things since 1866. But bear in mind, the 
R.S. 2477 statute said ``unreserved lands,'' so that meant all of the 
public lands the United States owns that have not been set aside for 
another purpose. The effect of that, of course, was, from 1866 until 
1976 when it was repealed, anybody who claimed a footpath, almost a cow 
trail, a sled trail, hiking trails, almost anything would qualify as a 
highway under the language in this bill.
  A lot of highways were built under these R.S. 2477 rights-of-way 
between 1866 and 1976, and we are not contesting a single one of those.
  What we are saying is, the provision put in this bill by the Senator 
from Alaska [Mr. Stevens] simply says we are going to let State law 
determine what is and is not a public, valid right-of-way.
  This, admittedly, is primarily an Alaska, Utah, and probably Idaho 
issue. It does not affect my State. There are some of the Western 
States that have these rights-of-way. But in any event, here is what 
the law said as we passed it in 1866. ``[T]he right-of-way for the 
construction of public highways across public lands, not reserved for 
public uses, is hereby granted.''
  As I say, that includes dogsled trails, that includes footpaths, it 
includes any kind of a path. And there are literally thousands and 
thousands of them that have been claimed.
  Mr. President, I will come back to how the language in this bill will 
work in just a moment. But listen to this. The State of Alaska has 
passed a law making every section line in Alaska a right-of-way and 
subject to having a highway built on it. I am reluctant to say this, 
but if you build on just half the rights-of-way that Alaska is 
claiming, you would not be able to travel. There would be too many 
roads to get around.
  In any event, I want to make it crystal clear that this amendment has 
nothing to do with existing highways that have been built under the 
1866 law.
  Mr. President, there have never been regulations crafted to deal with 
this issue. In the 1930's there was sort of a half-hearted regulation, 
but not really anything.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUMPERS. Now, Mr. President, I want to make another point crystal 
clear, and it is this: When I said a moment ago that the effect of this 
amendment would allow State law to determine what constitutes a valid 
existing

[[Page S4051]]

right-of-way, it would take away the Secretary of the Interior's 
ability to determine what was a highway. In short, all of these 
thousands and thousands of so-called R.S. 2477 right-of-way claims all 
over the West would become valid.
  Now, bear in mind, there is another facet to this, and that is the 
Secretary in January of this year set out a policy which effectively 
repealed a policy established by Donald Hodel when he was Secretary of 
Interior in 1988. The Hodel policy--it is not a regulation; we have 
never had a rule or regulation, it was simply a policy statement--was 
that just about anything could qualify as a highway.
  Now, whether the Hodel policy stated that the States shall have 
exclusive rights to determine what a right-of-way is, I do not really 
know right now, but I can tell you, if section 310 passes, State law 
will determine what is going to happen to thousands of rights-of-way in 
this country that cross national parks, wilderness areas, monuments, 
and any other land in the West that was set aside after these claimed 
rights-of-way existed.
  Let me give an example. Assume that there are 20 rights-of-way that 
the State of California would claim cross Yosemite National Park. They 
claim those rights-of-way were established before Yosemite became a 
national park. It was unreserved Federal land before, and these rights-
of-way were across that Federal land. Later on, we establish Yosemite 
National Park. Under this section, if the Stevens language stays in 
this bill, which has absolutely no business being in this bill, but if 
my amendment is defeated, that means that California law will dictate 
what highways can be built across Yosemite National Park--not the 
National Park Service, not the Federal Government, but the State of 
California.
  Think of all the thousands of rights-of-way that could be claimed in 
Alaska. Mr. President, just for openers, here are some of the claims 
that have been filed. These are not all the claims that Alaska, Utah, 
Idaho, and other States have as to what constitutes a valid right-of-
way. These are the ones that have actually been filed with the 
Secretary of Interior and requested to be declared an existing valid 
right-of-way on which they can build a four-lane superhighway, if they 
desire. Alaska has 256 claims on file, but they have God knows how 
many--thousands that they could claim. Idaho has 2,026 on file, and 
Utah has 6,173 claims filed in the Secretary's office. Those are a lot 
of potential highways across Federal lands, and the Federal Government 
could not stop them no matter what kind of highway they wanted to 
build.
  When I started off telling you how bizarre this was, just think about 
that. When we held our first hearing in the Energy Committee on what to 
do about these so-called R.S. 2477 rights-of-way, I may have been 
dense, but it took me a long time to understand that we were really 
talking about something serious. I never heard of anything so bizarre 
in my life. Yet, the chairman of the Appropriations Committee--we all 
represent our States, and I am not holding him guilty of anything. I am 
just saying the rest of us do not have to follow suit. He is chairman 
of the committee and he puts this in a supplemental appropriations bill 
designed to aid areas hurt by natural disasters, including help for the 
people of Arkansas. There is $6.5 million for debris removal in streams 
as a result of a tornado on March 1 in Arkansas. There is $3.5 million 
in this bill to allow an all-black community just outside Little Rock 
to tie into the Little Rock sewer system. Virtually the entire 
community of College Station was wiped out, a community of less than 
500 people, and they cannot build new homes or borrow money to build 
new homes until they get on the sewer system. And the chairman, very 
graciously, and the committee, very graciously, accepted my amendment 
to put $3.5 million in there to accomplish that. How many nights did we 
look at the Dakotas and Minnesota, which was a veritable lake?

  Mr. President, do you know the name of the bill we are considering? 
It is the emergency supplemental appropriations bill. The R.S. 2477 
issue is no emergency. The language I am trying to strike was put in 
there and it had nothing to do with any kind of disaster or emergency. 
It was put in there to accommodate primarily the States of Alaska, 
Utah, and Idaho. I have nothing against any of those States, but I tell 
you what I do have, I do have a strong feeling about protecting the 
citizens of this country and the Federal lands which they all own. Some 
of it is in my State--admittedly, not as much as in Alaska and some 
Western States--but every single Member of the U.S. Senate has a solemn 
obligation, occasionally, to stand on their hind legs and say no to 
such things as this.
  Every Senator has or will have a letter on his desk from Secretary 
Babbitt saying he will strongly urge the President to veto this $8 
billion bill if this provision is left in it. Why wouldn't he? My point 
is, why are we, U.S. Senators, holding the people of North Dakota, 
South Dakota, and Minnesota hostage to an amendment that should not be 
on this bill? It is not an emergency. It is not even an appropriations 
measure.
  Mr. President, I get terribly exercised about things like this 
because I think I have a solemn duty to bring this to the attention of 
the Senate. In January of this year, Secretary Babbitt, not popular 
with Western Senators--but that has nothing to do with this amendment. 
What it does have to do with this amendment is whether or not we are 
going to allow every single State who can identify a pig trail that was 
used by human occupants any time between 1866 and 1976, across lands 
that have subsequently been made national parks, monuments, and 
wilderness areas, whether we are going to allow those States to 
determine that those trails are now highways and then build highways on 
them with no input from the Secretary.
  So Secretary Babbitt, in January of this year, issued a policy--not a 
rule, not a regulation, but a policy. Here is what his policy said. It 
defines a highway to be ``a thoroughfare used by the public for the 
passage of vehicles carrying people or goods.'' Now, Secretary 
Babbitt's policy also allows for the abdication of State law to the 
extent consistent with Federal law, which, of course, makes Federal law 
dominant, as it should be.
  Nobody is trying to punish Alaska. Nobody is trying to punish Idaho. 
Nobody is trying to punish Utah. What we are trying to do is say these 
sacred parks and monuments that we have developed over the years--
Yellowstone, Yosemite, Bryce Canyon, Saguaro, you name it--you cannot 
let the States just walk in and willy-nilly start building highways 
across those places. If you do not vote for my amendment, that is 
precisely what you are voting for.
  Mr. President, I hope the Senate will pay attention to this issue--as 
I say, this is an arcane issue. Most people in this country do not have 
a clue that a law such as R.S. 2477 ever existed. I want to get help to 
the people of my State who have been devastated by tornadoes. I want to 
get help to people in California who have suffered from floods, to the 
Dakotas and Minnesota, one of the most awesome things we have ever 
watched on television. This bill is designed to help them. That is what 
a compassionate, caring government does.
  One of the reasons I voted against the constitutional amendment to 
balance the budget is because it would have prohibited the Congress 
from appropriating money to help people who had suffered that kind of 
disaster because it would unbalance the budget. You could not do it 
without a 60 percent vote of both Houses, and if you did not get it, 
they just suffered. That is what would happen a lot of times.
  I am not going to belabor this. I have made the point as well as I 
can. I see the junior Senator from Alaska on the floor. I yield the 
floor.
  Mr. MURKOWSKI. Mr. President, I appreciate the remarks of my friend 
from Arkansas. But the Senator from Arkansas says that this is not an 
emergency, and, as a consequence, this particular provision that is in 
the appropriations supplemental should not be here. Well, he is 
absolutely wrong because this is an emergency. It's a raid on the 
Western States of this Nation. The reason it is a raid, Mr. President, 
is because we are going to change the rules all of a sudden. Why are we 
changing the rules? Because the Secretary of the Interior doesn't want 
the States to continue to have the rights that we have had for 130 
years. We have had a law for 130 years, a law that ensures access 
across public lands, which

[[Page S4052]]

specifically addresses that there was some kind of a highway, some kind 
of an access in existence prior to October 21, 1976.
  Now, the Secretary of the Interior proposes to take this authority 
away from the States and give it to the Federal Government. That is why 
it is an emergency. We are fighting for survival. Here is a picture of 
my State of Alaska. I hope the Senator will take a good look at it, 
because here is Alaska today, Mr. President--a State with 33,000 miles 
of coastline. You can see our highway system here. We had one new 
highway built in the last 20 years, the Dalton Trail, which parallels 
the pipeline. This is an area one-fifth the size of the United States, 
Mr. President.
  If the motion to strike prevails by the Senator from Arkansas, our 
traditional access routes will be eliminated. Let me show you a map, 
Mr. President, of the State of Arkansas. There is the highway system in 
Arkansas, Mr. President; it's a fully developed State. It has been a 
State of the Union for over 100 years. My State has been in existence 
for 39 years. Here is a map of Arkansas today--roads all over the 
place. They are necessary for the economy of the area. I don't take 
issue with the road system. These roads came about in the development 
over a long period of time in the State, as we would anticipate. So 
there we have the basic issue.
  The Senator from Arkansas says that virtually any access across 
public land would be provided if indeed this portion that he wants to 
strike remains in the legislation. Well, let me tell you, as chairman 
of the committee with jurisdiction over R.S. 2477, I'll just say that 
the rights-of-way are the future vitality of our State.
  Despite all the rhetoric that has been made about this provision, it 
simply amounts to a tightening of a permanent moratorium placed on the 
Federal Government last year. It is that simple. What we want to do is 
keep in place the law as it has been for 130 years, keep the 
departmental regulations as they have been codified since 1932, I 
believe, and again in 1974.
  Now, the only thing that has changed in this debate is the level to 
which the administration will go to provide scare tactics to influence 
this process. Let me state here that I find some of the rhetoric coming 
out of the Interior Department concerning this provision absolutely 
reprehensible.
  I have a copy of a letter the Secretary of Interior sent to the 
chairman of the Appropriations Committee last week. At best, this 
letter shows an alarming ignorance of the history, topography, and the 
economy of the Western States. At worst, it shows the level of deceit 
that this administration is evidently willing to go to in order to 
mislead the American public about this issue.
  Now, in this letter there is a claim that a provision in this bill 
will create some 984,000 miles of new highways in Alaska, based on a 
1923 Alaska law creating section-line rights-of-way. That is a fallacy, 
Mr. President. This is in a State--my State--which currently has just 
over 13,000 total miles of roads, along with the marine highway system. 
Alaska has a population of about 600,000, a budget deficit, and the 
last road built in Alaska cost more than $6 million per mile, down from 
Whitehorse to Skagway, the U.S. portion.
  If you take the miles the Secretary is talking about in his scare 
letter, you would have to spend just roughly $6 quadrillion to build 
these proposed roads in our State--more money than even the current 
administration could even dream up in taxes.

  The Secretary contends that this is going to happen because the 
section-line law exists in Alaska. Here are some facts about that. The 
State has had a section-line law on the books since 1923. That is the 
one correct statement in Secretary Babbitt's letter. The State has had 
the ability to assert section lines since 1923. There are no current 
rights-of-way based on section lines in Alaska. The State has never 
filed a section-line right-of-way. We have the right, but we also have 
the self-discipline. According to the Governor's office during last 
year's hearing, the State has no intention to ever file a section-line 
right-of-way. The fact is, section lines have little or no practical 
application as transportation corridors in Alaska due to the difficulty 
of the terrain.
  Second, the Secretary also states:

       My efforts over the past several years have been directed 
     to establish a clear, certain, and fair process to bring 
     these claims to conclusion . . . the public will be poorly 
     served by Congressional action that has the effect of 
     rescinding the Department's current orderly manner of 
     proceeding to deal with the right-of-way claims.

  I find that statement interesting, considering what the Secretary 
wrote us in 1993, which was:

       I have instructed the BLM to defer any processing of R.S. 
     2477 assertions except in cases where there is a 
     demonstrated, compelling, and immediate need to make such 
     determinations.

  So, in fact, the administration's orderly process of dealing with 
these claims is to take no action whatsoever.
  Well, Mr. President, the fact is, if an R.S. 2477 was not in 
existence on October 21, 1976, it will not and cannot, by definition, 
be created now. This is what the statement of my friend from Arkansas 
suggests will lead to simply an open and arbitrary selection of areas 
across public land. He said, ``Just about anything, anybody, any 
excuse, will get you access.'' It will not, Mr. President. It is 
misleading and it is inappropriate to suggest that. You must have had 
in existence on October 21, 1976, evidence of utilization of that area 
as a trail, as a highway, some kind of route.
  Let me show you what we have here, Mr. President. This is a map made 
in 1917, before Alaska became a State. What it shows here is rather 
interesting, because this is what this issue today is all about. It is 
about access, early access. The two definitive identifiers in red here 
are winter stage lines and U.S. Government winter U.S. trails to 
Fairbanks. We didn't have a highway system. These two large red 
routings were trails, winter trails. In the summertime, they were used 
as wagon trails. That was access into the interior. Today, these two 
represent highways. These greens are the R.S. 2477's that provide 
access routes across public lands, so that we can get from Fairbanks 
out to McGrath, we can get from Nome out to the gold fields, across 
public lands.
  Let me show you why it is so important in Alaska relative to having 
the assurance of access across public lands. This is Alaska. Every 
color you see is a Federal withdrawal, Mr. President. Take a look at 
it. Federal withdrawal. Now, how in the world are we going to get from 
the southern part of the State to the northern part of the State 
through all these colors, because the only area that the State controls 
are the white areas? We have to have access. This law gives us that 
access. That is why this is an emergency. It is an emergency because 
the Secretary wants to take that authority away. We have had the 
authority for 130 years.
  Look at what we have done with it, relative to highways in Alaska. We 
haven't wandered all over the place. We have 13,000 miles of roads. But 
we have to have access, and that is why it is so vital that this matter 
be addressed now. We have to have access down from Prudhoe Bay. We have 
a little, tiny corridor, 3 miles wide. This is all Federal withdrawal. 
How are we going to get east and west if we don't have this provision? 
We simply can't get there from here. So while it doesn't mean much from 
the standpoint of the constituents in Arkansas, who have a State that 
is fully developed with a road system that looks like this, we have a 
situation where it is the lifeblood and the future of our State to have 
the assurance that we are going to have access, because the Federal 
Government basically owns our State.

  The Secretary wants to take that authority away from us. The senior 
Senator from Alaska and I and the Senators from Utah are all sensitive 
to the realities associated with this. This is our lifeblood. We have 
to have it. It is an emergency. It is necessary now. The administration 
and the Secretary want to take the authority away from the States and 
give it to the Federal Government. We all know what that means, Mr. 
President. That means disaster.
  The fact is, again, if an R.S. 2477 was not in existence on October 
21, 1976, it will not and cannot, by definition, be created now. So 
when we look at those old maps of Alaska, we have to go back and 
ascertain and prove that we have had a trail, we have had a sled dog

[[Page S4053]]

trail, we have had a regular route of access. If we can prove that, 
then we have a right to public access across the land. That is what 
this issue is all about. It is a legitimate States rights issue. The 
only thing is, most of the States aren't affected anymore. But some of 
the Western States are, and it is our lifeblood.
  The problem, of course, is the prevailing attitude of the Secretary 
of the Interior, who basically controls public land in our State--his 
particular attitude toward allowing us--which we can do under current 
law--to get across those public areas. But that is going to be taken 
away. And as a consequence of that, Mr. President, we are at the 
absolute mercy of the Secretary of the Interior if the motion to strike 
by my friend from Arkansas prevails.
  I am not going to speak about what happened in Utah last fall. The 
Senators from Utah are here to state that. It is a perfect example of 
what happens when a small cadre of administrative officials take it 
upon themselves to decide how America's public lands should be used. I 
have worked with my friend from Arkansas for a long time. We have been 
able to work on many issues that we agree upon. But during that time, 
we have had different approaches to some issues. In 1995, a number of 
Western Senators, upset about the Department of the Interior's proposed 
regulations on R.S. 2477, sought to place the language in the proposed 
highway bill overturning the effect of the proposed regulations.
  Many of my colleagues will remember that the final passage of that 
bill was delayed until late in the evening until we could resolve the 
issue during the day. The Senator from Arkansas and I met to discuss 
the issue. We didn't come out with any finality about how to solve the 
R.S. 2477 debate. But we did agree for the time being placing a 
moratorium on the Department from issuing any regulations. That made 
sense.
  So in the 1995 national highway bill there appeared a 1-year 
moratorium on the department from issuing any rules or regulations on 
the issue. For the most part, this held the status quo, as it has been 
for the past, as I said, 130 years in terms of R.S. 2477 right-of-way.
  I, along with a number of Western Senators, introduced Senate bill 
1425 last Congress to set out an orderly process by which people can 
submit their right-of-way claims to the department to seek formal 
recognition. My friend from Arkansas opposed that, and in the end we 
agreed upon compromise legislation that passed out of the committee. 
The compromise legislation placed a permanent moratorium on the 
Government by stating, ``No final rule or regulation of any agency of 
the Federal Government pertaining to the recognition, management, or 
validity of a right-of-way pursuant to Revised Statute 2477 shall take 
effect unless expressly authorized by an act of Congress subsequent to 
the date of enactment of this act.''
  It is this language that was placed in last year's Omnibus 
Appropriations Act, and is law today. We agreed to only prevent final 
rules and regulations in the hope that the Department would work on 
developing a more reasonable recognition process that could be 
submitted to Congress for approval. Unfortunately, it has been about 8 
months now since that legislation passed, and there is no indication 
that the Secretary has any intention of submitting regulations. 
Instead, what the Secretary has decided now to do is to shred the 
longstanding departmental policy regarding R.S. 2477 regulations and 
replace it with his own. That is why this is an emergency now. It is 
the lifeblood of the Western States who are still developing and need 
access, and need the assurance that we will be able to cross public 
land as long as we are able to prove that we have traditionally used 
that access route prior to 1976--a wagon trail, a snow machine trail, a 
dog sled trail. And it doesn't mean much in New York. It doesn't mean 
much in Arkansas. But in Alaska that is how we can get there from here. 
We simply have to have that assurance.
  The real difference between the provision in the bill before Congress 
today and the permanent moratorium passed last year is that there is 
less likelihood that the administration will be able to find a way to 
skirt around congressional intent with this provision.
  Mr. President, in my State these were coveted promises that we were 
advised would be available to us when we accepted statehood--that we 
would have the opportunity to access across public land based on 
traditional utilization, trails, rights, and so forth.
  To make the statement that almost anywhere indiscriminately one could 
claim a route across public land, or parks, or recreation areas is 
absolutely absurd. The only areas, again, that have any justification 
for consideration under R.S. 2477 are the historical areas of use prior 
to 1976 across unreserved public lands.
  So, Mr. President, as we conclude this debate, I encourage my 
colleagues to dismiss the rhetoric suggested by my friend from Arkansas 
who is, obviously, carrying the weight of the Secretary of the 
Interior. But when he makes statements that just about anybody or any 
excuse is justifiable in coming across public land is unrealistic. When 
he suggests that this is no emergency and should not be on the 
appropriations supplemental, he is wrong because it is an emergency. 
They are going to take this away from us by administrative fiat. That 
is the bottom line.
  So here we are today, Mr. President, responsibly; 13,000 miles of 
road, an area one-fifth the size of the United States. This action by 
the Secretary of the Interior would eliminate the right that we have as 
a State, and the commitments that we had coming into the Union, to have 
the assurance that we would have continued access across public land.

  So I encourage my colleagues on this vote to recognize the 
significance of what this means to Western States. This was a promise 
made by the Federal Government--a commitment that they are proposing to 
take away. It is unrealistic. It is unjust.
  This belongs in here because we need the continued assurance that we 
will have an opportunity, and in an orderly manner, to pursue, if you 
will, access that was guaranteed when Alaska became a State and when 
other Western States came into the Union.
  I yield to the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague from Alaska for the 
excellent remarks he has made. He has summarized this as well as anyone 
could. He is an expert in this area.
  And I compliment my colleague from Utah for the work he is doing in 
this area. He is a great leader in this area. I personally appreciate 
the leadership that he has provided. He will show through descriptive 
evidence some of the problems that we have.
  Let me just say this: I also want to thank Senator Stevens, the 
senior Senator from Alaska. Both he and Senator Murkowski have provided 
our colleagues with a good overview of where the situation now stands, 
why the language in the supplemental appropriations bill is necessary, 
and why Senators should oppose the amendment of our good friend and 
colleague, Senator Bumpers.
  I want to commend Senators Murkowski and Stevens for their leadership 
on this matter. They know and understand the issue better than anyone 
else in this body. When it comes to preserving rights-of-way over 
public lands for State and local governments, there are no better 
advocates than the two of them, and certainly the senior Senator from 
Alaska, who himself served in the Interior Department. I am pleased to 
join with them today, and I thank them on behalf of the citizens of my 
State for leading this effort.
  For several years now the Department of Interior and the U.S. 
Congress have been at odds over that Department's effort regarding 
vested property rights essential to states and local governments 
throughout the west. On at least three occasions, Congress has blocked 
promulgation of Interior Department regulations intended to regulate 
retroactively the terms and conditions of the establishment of certain 
highway rights-of-way vested between the middle of the last century and 
1976.
  As Senator Murkowski indicated, the Department of Interior, 
frustrated by Congress, is now attempting to do indirectly that which 
it cannot do directly. The Department is attempting to implement the 
blocked regulations under the guise of a new policy guidance issued on 
January 22 of this year. This

[[Page S4054]]

guidance promotes a concept of Federal law which preempts State law, in 
spite of the fact that Federal courts have found State property laws 
applicable to issues such as vesting and scope of the right-of-way as a 
matter of Federal law.
  What is at stake here for those of us in the West is the preservation 
of what amounts to the primary transportation system and infrastructure 
of many rural cities and towns. The rights-of-way in question are found 
in the form of dirt roads, cart paths, small log bridges over streams 
or ravines, and other thoroughfares and ways whose development and use 
was originally authorized in 1866 during the homesteading activities 
that led to the establishment of western communities. They have been 
created over time and by necessity. In many cases, these roads are the 
only routes to farms and ranches; they provide necessary access for 
school buses, emergency vehicles, and mail delivery. These highways--
and we are obviously not using the term ``highway'' in the modern 
sense--traverse Federal lands, which in Utah comprises nearly 70 
percent of Utah's total acreage, and they have been an integral part of 
the rural American landscape for over a hundred years. Congress created 
these rights-of-way in 1866; Secretary Babbitt is now attempting to 
eliminate, if not devalue, them in 1997.
  Let me set forth for my colleagues, in as brief a form as possible, 
the black letter principles applicable to this issue and why the 
disposition of this matter is so critical to those of us representing 
public lands States.
  As has been stated, Revised Statutes 2477 states, in its entirety:

       Sec. 8. And be it further enacted, That the right of way 
     for the construction of highways over public lands, not 
     reserved for public uses, is hereby granted. (Sec. 8 of the 
     Act of July 26, 1866, 14 Stat. 253, later codified at 43 
     U.S.C. Sec. 932, repealed October 21, 1976.)

  In 1976, Congress adopted the Federal Land Policy and Management Act 
of 1976 (FLPMA) that repealed these 26 words known as R.S. 2477. At the 
same time, Congress included language protecting these valid existing 
rights, thus making the actions of the Department of Interior after 
passage of FLPMA subject to those rights. FLPMA explicitly states this:

       Nothing in this Act, or in any amendment made by this Act, 
     shall be construed as terminating any valid lease, permit, 
     patent, right-of-way, or other land use right or 
     authorization existing on the date of approval of this act * 
     * * All actions by the Secretary concerned under this Act 
     shall be subject to valid existing rights. (FLPMA 
     Sec. Sec. 701 (a) and (h), 43 U.S.C. Sec. 1701 notes (a) and 
     (h).)

  From 1938 until the repeal of R.S. 2477 in 1976 by FLPMA, regulations 
published by the Department of Interior made it clear that the 
executive branch had no role to play in determining or regulating the 
validity or scope of R.S. 2477 rights-of-way. The regulations 
explicitly stated that:

       No application should be filed under R.S. 2477, as no 
     action on the part of the Government is necessary. 43 C.F.R. 
     Sec. 2822.1-1 (1972, emphasis added).

  They further provided that:

       Grants of rights-of-way referred to in the preceding 
     section become effective upon the construction or 
     establishment of highways, in accordance with the State laws, 
     over public lands, not reserved for public uses. 43 C.F.R. 
     Sec. 2822.2-1 (1972).

  In other words, the grant of a right-of-way was a unilateral offer 
that vested automatically upon an act of acceptance. A published 
Interior Department decision said essentially the same thing as early 
as 1938:

       This grant [R.S. 2477] becomes effective upon the 
     construction or establishing of highways, in accordance with 
     the State laws, over public lands not reserved for public 
     uses. No application should be filed under this act, as no 
     action on the part of the Federal Government is necessary.'' 
     (56 I.D. 533 (May 28, 1938).)

  The current published Interior regulations state that if 
administration of any pre-existing right-of-way under regulations 
promulgated pursuant to FLPMA would diminish or reduce any rights 
``conferred by the grant or the statute under which it was issued, * * 
* the provisions of the grant of the then existing statute shall 
apply.'' This language was explained in the Department's final 
rulemaking as follows:

       In carrying out the Department's management 
     responsibilities, the authorized officer will be careful to 
     avoid any action that will diminish or reduce the rights 
     conferred under a right-of-way grant issued prior to October 
     21, 1976.

  FLPMA also provides:

       Nothing in this title [43 U.S.C. Sec. Sec. 1761 et seq.] 
     shall have the effect of terminating any right-of-way or 
     right-of-use heretofore issued, granted or permitted. 
     However, with the consent of the holder thereof, the 
     Secretary concerned may cancel such a right-of-way or right-
     of-use and in its stead issue a right-of-way pursuant to the 
     provisions of this title. (43 U.S.C. Sec. 1769 (emphasis 
     added).)

  These explicit provisions make it clear that the local and the State 
governments that hold R.S. 2477 rights-of-way have always been entitled 
to exercise them in accordance with their duly constituted authority 
and in accordance with the applicable provisions of State law without 
interference from the Federal Government. No action by Congress would 
allow any interference by Federal agencies with the exercise of these 
rights in accordance with State law. The current Department of Interior 
regulations merely confirm Congress' intent that the agencies honor 
these vested property rights.
  Past efforts to define any of the key words in the original R.S. 2477 
statute and to determine their original intent have created many 
different and varied opinions. Words such as ``construction'' and 
``highway'' have been the subject of many analyses by lawyers and other 
experts on public land issues. Even Secretary Babbitt in his policy 
guidance of January 22 provides a definition of a ``highway'' as it 
pertains to R.S. 2477 that, in my opinion, is inconsistent with legal 
precedents. For example, Federal courts have honored the common law 
definition of ``highways,'' which basically requires only that the 
route be open to the public to travel at will. Here are just a few of 
the statements the courts have made which elucidate this point:

       The act of Congress [43 U.S.C. 932--then R.S. 2477] does 
     not make any distinction as to the methods recognized by law 
     for the establishment of a highway. It is an unequivocal 
     grant of right of way for highways over public lands, without 
     any limitation as to the method for their establishment, and 
     hence a highway may be established across or upon such public 
     lands in any of the ways recognized by the law of the State 
     in which such lands are located. Any other  conclusion would 
     occasion serious public inconvenience. (United States v. 
     9.947.71 Acres of Land, 220 F. Supp. 328 (D. Nev. 1963), 
     quoting Smith v. Mitchell (1899) 21 Wash. 536, 58 P. 667, 
     at 668.)
       The parties [including the Department of Interior of the 
     United States] are in agreement that the right of way statute 
     [R.S. 2477] is applied by reference to state law to determine 
     when the offer of grant was accepted by the construction of 
     highways.

  In Colorado, and in Utah, the term ``highways'' includes footpaths.
  Highways under 43 U.S.C. 932 can also be roads formed by the passage 
of wagons, etc., over the natural soil.
  In Colorado, mere use is sufficient: ``It is not required that `work' 
shall be done on such a road, or that public authorities shall take 
action in the premises. Use is the requisite element, and it may be by 
any who have occasion to travel over public lands, and if the use be by 
only one, still it suffices.''
  The Secretary's new policy states that ``a highway is a thoroughfare 
* * * for the passage of vehicles carrying people or goods from place 
to place.'' This policy blatantly ignores the history of legal 
decisions in this area by insisting that a R.S. 2477 right-of-way must 
provide for the passage of a vehicle. How did the Secretary arrive at 
this definition? By what authority can he overlook decades of legal 
opinions and insert his own philosophy or interpretation of the 
original statute to create this critical definition? There can be no 
solid foundation upon which he takes this leap of interpretation, 
except his own desire to rewrite these opinions to say or mean 
something different. The decisions stand for themselves. This body 
cannot allow the Secretary's new policy guidance to go unchallenged.
  Let me underscore the importance of this issue by stating several 
critical facts.
  First, it is clear from the record that the Department of Interior 
understood that FLPMA did not grant authority to the Bureau of Land 
Management [BLM] to diminish any prior valid existing rights. It is 
also clear that many counties in western States have been maintaining 
the transportation infrastructure across Federal lands for many decades 
without interference from the Federal land managing agencies, 
particularly the BLM, according to legal and regulatory precedents.

[[Page S4055]]

  However, current actions by Interior and the Department of Justice 
contradict these express provisions of FLPMA. For example, the 
Secretary's new policy guidance of last January states that the BLM 
should not process R.S. 2477 assertions in the absence of a 
demonstrated, compelling, and immediate need to make such 
determinations. Thus, BLM has been precluded from addressing R.S. 2477 
questions administratively, to the extent it might otherwise have done 
so.
  And, Department of Justice officials have been telling county 
governments that they cannot maintain their R.S. 2477 rights-of-way 
without first obtaining the permission of the BLM. It is a catch-22 of 
a serious nature. The BLM is not addressing R.S. 2477 rights-of-way on 
the lands they manage, while right-of-way holders are being told they 
cannot exercise the rights unless BLM addresses them first. For this 
reason, several western counties have been sued by the United States, 
based on complaints that assert that the counties have violated the law 
by maintaining roads without first seeking permission from the BLM or 
the National Park Service. These complaints, as well as other public 
statements made by Department of Justice officials, assert that 
permission from the land managing agencies is required before a county 
can take any action to exercise its rights.
  The BLM or the Justice Department has told more than one county in 
Utah that they should seek FLPMA rights-of-way, more accurately 
described as conditional use permits than true rights-of-way, because 
there is no R.S. 2477 process in place and because BLM cannot authorize 
activities on R.S. 2477 rights-of-way without first going through a 
process. Counties are threatened with lawsuits if they exercise their 
rights as they have in the past.
  I recently brought this matter and these current facts to the 
attention of Attorney General Janet Reno in a letter detailing the 
history of R.S. 2477. Among several things, I asked her if she was 
aware of Secretary Babbitt's policy guidance of January 22 and whether 
her office was consulted as to the legal sufficiency of terms defined 
within the policy. I asked her because, in the end, if this or any 
other government policy is challenged in court, the Department of 
Justice will have to defend it, and the lack of consistency on 
definitions and other wording contained in that policy could lead to 
insupportable and unnecessary litigation. Her response to my letter 
indicates that while her office was aware of the Secretary's January 
policy statement, she does not say conclusively that Justice was 
consulted. The letter closes by stating that ``the final determination 
(on the policy guidance) * * * rests with the Secretary.'' The answer 
to my query is obvious.
  This is interesting in light of the fact that the chief of the 
General Litigation Section of the Environment and Natural Resources 
Division at the Department of Justice wrote a letter to the Department 
of Interior's solicitor on January 29 asking that Secretary Babbitt's 
policy guidance be modified to reflect any future adjudication of R.S. 
2477 rights-of-way claims. The Secretary later released a memorandum 
dated February 20 making this clarification in the policy statement.
  My point in raising this matter is this: when it comes to 
establishing a new policy on such a technical issue as R.S. 2477 
rights-of-way, where the definition of key words and phrases--like 
``highway'' and ``construction''--is of paramount importance, the 
Government's own legal authorities who may have to defend those 
definitions should be consulted.
  To say the least, this situation is intolerable for holders of R.S. 
2477 rights-of-ways. Attempts to rectify this situation in an amicable 
fashion, either through regulation or legislation, have proved futile. 
Now, Secretary Babbitt is skirting both the letter and spirit of recent 
congressional direction regarding R.S. 2477 rights-of-way through his 
policy guidance of last January. If he is serious about bringing 
closure to this matter once and for all and in a way that is in the 
best interests of the public and local and State governments that hold 
R.S. 2477 rights-of-way, then I encourage him to work with the 
Congress, not against it.
  Mr. President, some claim that R.S. 2477 rights-of-ways are nothing 
more than dirt tracks in the wilderness with no meaningful history, 
whose only value to rural counties arises from the hope of stopping the 
creation of wilderness areas. Nothing could be further from the truth. 
No one is suggesting that we turn these rights-of-way into six-lane, 
lighted highways with filling stations, billboards, and fast food 
restaurants, as Secretary Babbitt alluded to in his recent letter 
threatening a veto recommendation if this bill is not amended. Yet, 
these rights-of-ways constitute an important part of the infrastructure 
of the western States.
  My colleagues can think of it this way: Let's say your front yard 
belonged to someone else--the Federal Government, for example--and the 
gravel driveway was the only way to get to your house from the street. 
The Secretary's policy guidance would have the effect of denying you 
the use of your driveway. You would have to haul your groceries to your 
front door from the street.
  A simple illustration, perhaps, but one that shows the importance of 
these R.S. 2477 rights-of-way to the people in the West.
  There is no pressing environmental reason to change the R.S. 2477 
rules other than to make Federal land more pristine than it has been 
since the pioneers settled the West. In most cases in Utah, this is 
absolutely impossible, since some of Utah's R.S. 2477 rights-of-way, 
like Utah State Highway 12 near Bryce Canyon National Park, are paved 
and heavily traveled. What would those opposing the full exercise of 
these rights-of-way have the State of Utah do--dig up the blacktop, 
remove the pavement, erase the yellow markings, and reclaim this road 
in the form it existed prior to 1866? That is ludicrous. And, we may as 
well sell off Bryce Canyon because no one will be able to get there. 
The right-of-way has been developed over time with improvements to it 
pursued in the name of protecting public safety and welfare.
  Mr. President, any disposition of issues related to rights-of-way 
across public lands is of utmost concern to States like Utah with 
public lands. These rights-of-way provide the backbone of our 
transportation infrastructure and have deep historic and traditional 
roots in the overall development of the West. There are regulatory and 
legal precedents that should be followed and adhered to when these 
rights-of-way are administered. The Secretary's policy guidance of 
January 22 is not consistent with this law, precedent, or custom, which 
is why the language in the supplemental appropriations bill is 
necessary.
  I urge my colleagues to reject the Bumpers amendment.
  I thank my colleagues from Alaska and I thank my colleague from Utah 
for their leadership on this matter, and in particular I would like to 
thank my colleague from Utah for allowing me to go first here because I 
am conducting a hearing over in the Judiciary Committee and I need to 
get back. So I am grateful to him for his courtesy in allowing me to do 
this. I hope that our colleagues will vote down the Bumpers amendment. 
It just plain is not fair to the West. What Secretary Babbitt is doing 
is not fair to the West. In fact, it is extreme and it flies in the 
face of many precedents of law that have existed and do currently 
exist.
  Mr. President, I yield the floor.
  Mr. BENNETT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I ask unanimous consent that privileges 
of the floor be granted to Cordell Roy for today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I thank the Chair.
  There is an old line in politics that applies in campaigning that 
says when you are explaining, you are losing. And there would be those 
who say, because of the technicalities of the explanations we have to 
give about this fairly technical matter, we are probably losing the 
issue.
  However, if you are explaining, it does not necessarily mean you are 
wrong. I am going to do my best to try to be as simple in my 
explanation today because we are not wrong on this one. This is not an 
issue where the Senators from the Western States are trying to do 
something improper for the rest of the country, something parochial 
just for ourselves. These are fundamental issues and they should be 
clearly explained and understood.

[[Page S4056]]

  I would like to focus on one road and one circumstance that will help 
explain this matter. I picked this road because it is perhaps the most 
controversial R.S. 2477 road in all of Utah. It has a very romantic 
name. Its been called the Burr Trail. I do not know who Burr was, and I 
do not know what trail he or she made across this land in the first 
place. I suppose at some point somebody will tell me all of that. 
Frankly, as I read about it in the newspapers and heard people talk 
about the Burr Trail before I became a Senator, I had visions of a 
footpath going through a forest. That is what a trail means to me. And 
then I was elected to the Senate and had to get into the details.
  This is, Mr. President, a picture of the Burr Trail. As the Presiding 
Officer can clearly see, this is a road. It is 28 feet wide. It is a 
well-traveled road. I have been on it. No, I did not need an all-
terrain vehicle to get on it. I was on it in a street-legal vehicle, 
driving along it. It is used, whatever Mr. or Mrs. Burr anticipated, as 
the principal way the residents of Garfield County can get from one end 
of that county to another. It happens to run through the Capitol Reef 
National Park. It was with the full consent of the Federal Government 
that the western Burr Trail across BLM lands was improved. The lands in 
dispute have to do with the 8 miles of road that go through the Capitol 
Reef National Park.
  This sign the Presiding Officer cannot see, as far away as he is, 
says, ``Entering Capitol Reef National Park.'' I would call your 
attention to this sign as a guidepost because I am now going to show 
you a second picture of the Burr Trail taken somewhat after the first 
one, and here again is the identifying sign to show you where we are. 
There is one difference. If you would remember from the first picture, 
you will see that this is a blind curve. As you are coming down the 
Burr Trail here, if there is traffic coming the other way, you are not 
going to be able to see it. It is a blind curve. There could be an 
accident. Under R.S. 2477, the responsibility of maintaining the Burr 
Trail lies with the county. They own it. It is a right-of-way that they 
have received according to Federal law. The county went out and cut off 
4 feet of land. As I said, the Burr Trail is 28 feet wide. As it got to 
this particular point, it narrowed to only 20, so the county decided to 
widen it to 24--not 28, not widen this curve as wide as the rest of the 
road but just take 4 feet off so you get a little bit of a view around 
the blind curve. They did that under their existing rights established 
by the Congress.

  Well, the reaction that occurred in the Interior Department would 
have had you believe they had gone into Yellowstone National Park and 
bulldozed Old Faithful. Interior officials were sent from Washington, 
DC, to Garfield County, sat down across the table from Garfield County 
officials and demanded that those officials immediately sign over their 
right to any meaningful management authority over the right-of-way. 
They also assured them that if county officials did not, they could 
face the full power and force of the Federal Government in Federal 
courts in the form of an aggressive legal action.
  This is not the only sin these county officials committed by creating 
an opportunity to see around the corner, by taking 4 feet off of an 
area that was, they understood, legitimately within their right-of-
way. When they took this action, they did not realize they were setting 
off such an enormous controversy.

  County officials did some other things on this road. They also made 
some improvements where the washboard effect had been created. They 
made some improvements where there had been debris that got on the 
road. They did changes in a normal maintenance circumstance, and for 
this they are now in Federal court with the full force of the U.S. 
Justice Department accusing them of all kinds of terrible environmental 
sins.
  I am sorry, Mr. President, I do not see the terrible environmental 
sin, going from the first circumstance of this kind of a curve to this 
circumstance; of taking a road that is 28 feet wide, narrows going 
around that curve to 20, and saying, no, we will make it go around the 
curve at 24 feet. I do not know that this merits the kind of wrath that 
has been brought down by the Interior Department on the officials of 
Garfield County. But that is what we are faced with.
  That is what we are talking about here, Mr. President. It has little 
or nothing to do with the road. It has little or nothing to do with the 
county maintaining this kind of right-of-way. It has to do with is who 
is going to make the decisions. The Federal Government is determined 
they will make the decisions whether the Congress gives them the right 
to do it or not. They will ride roughshod over the rights of the States 
and the counties whether the Congress gives them the authority or not. 
When the Congress specifically refused to give them the authority, this 
Secretary of the Interior said, ``All right, if the Congress won't give 
me the authority, I will usurp it. I will take it on my own and see if 
the Congress has the willingness to demand that I live up to prior 
agreements.''
  That is what this amendment is all about, a demand that the 
administration live up to prior agreements. That is what it is all 
about, the issue of can the States depend on the acts of Congress in 
terms of maintaining their existing rights.
  Mr. President, I would like to show you another picture. This one is 
not as controversial as the first pictures we have just seen. Those who 
say R.S. 2477 roads are mere trails, R.S. 2477 roads are mere 
footpaths, here is a picture of an R.S. 2477 road in the State of Utah. 
Why do I pick this particular one? Not because it is paved; there are 
plenty of R.S. 2477 roads in Utah that are paved. I picked this one 
because this is the road that millions of tourists will take when they 
come to the newly created Grand Staircase-Escalante National Monument. 
This is the road those tourists will have to use to come see the 1.7 
million acres that the President spoke about so lyrically on the south 
side of the Grand Canyon last September. It runs for about 70 miles.
  If we decide that the Secretary is right and the Federal Government 
has jurisdiction over this road, I can tell you what the counties will 
decide. You take away their property rights in this road and the 
counties will say, ``Since you have taken our property rights, you 
maintain the road. It is not our road anymore, let's allow the Federal 
Government maintain it.'' This is the kind of responsibility we are 
going to give to the Bureau of Land Management if we accept the motion 
of the senior Senator from Arkansas.
  Frankly, as a member of the Appropriations Committee, I do not want 
that responsibility. I do not want to take on additional Federal 
financial burdens. When there is a county more than willing and able to 
maintain the road, I say, why don't we let it do it? We will not let it 
do it because the Secretary of the Interior says, ``We want 
jurisdiction. We want jurisdiction over this road. We cannot trust the 
county to maintain the road.''
  I ask you, Mr. President, does this demonstrate that the county 
cannot be trusted to maintain the road?
  No, the real issue is that there are a number of roads in rural Utah 
that the Federal Government officials want closed. That is why they 
want to take away the property rights of those roads away from the 
counties, because they wants the roads closed. They want the roads shut 
down. The impact of shutting down the roads will be that, ultimately, 
people will move from the county because they cannot conduct commerce 
anymore. Ultimately, they would like to see southern Utah rid of human 
beings except those who work in motels and in fast-food places, people 
who have tourist oriented jobs. But they want no other jobs down there 
because they do not want any other economic activity in southern Utah 
to continue.

  Mr. MURKOWSKI. I wonder if my friend from Utah will yield for a 
question?
  Mr. BENNETT. I will be happy to yield.
  Mr. MURKOWSKI. Isn't a good deal of this debate about exactly what a 
highway is? And hasn't the Secretary, in effect, taken the assumption 
that he has the authority to change the terminology of what a highway 
is?
  Mr. BENNETT. I ask my friend from Alaska if he has a definition of 
what a highway is, in these circumstances. If he would share it with 
the Senate, I will be happy to yield the floor to allow him to do that.

[[Page S4057]]

  Mr. MURKOWSKI. I might just add, has my friend from Utah concluded 
his statement?
  Mr. BENNETT. I probably concluded prior to the time when I quit 
talking, but I got carried away.
  The PRESIDING OFFICER (Mr. Roberts). The Senator from Alaska.
  Mr. MURKOWSKI. I thank my friend from Utah for yielding. I would like 
to highlight, specifically for the benefit of my friend from Arkansas, 
who is back on the floor, what this debate is about. It is about what a 
highway is.
  Looking at the State of Arkansas, it is quite clear what a highway 
is. A highway is, as indicated on the highway map of the State of 
Arkansas, extended networks of access across the State, traditionally 
used for recreation, commerce, and so forth. The question we have here 
before us is the definition by the Department of Interior, how they are 
defining a highway. In 1988, the Department, after months of discussion 
and consultations with the Western States, developed its official 
policy on the R.S. 2477 right-of-way. That policy worked in conjunction 
with the States, as they defined historically what a highway was. I 
will quote this definition, because this is what this debate is boiling 
down to:

       A definite route on which there is free and open use for 
     the public. It need not necessarily be--

  And this is the key.

       It need not necessarily be open to vehicular traffic, for 
     pedestrian or pack animal or trail may qualify.

  It does not have to be for an automobile; pedestrian, pack animal, 
trail may qualify. That is where we have been in this debate up until 
now, and that is why it is appropriate that this be in here, to ensure 
that we will have that definition as opposed to what the Secretary of 
Interior has arbitrarily proposed in changing it.
  He proposes to state that, through an action used prior to October 
21, 1976, ``by the public for the passage of vehicles [cars] carrying 
people or goods from place to place.'' That is the change. That is the 
significance. He is doing this arbitrarily. He is saying that no longer 
is pedestrian access or pack trail or wagon trial adequate. It must be 
vehicles.
  Mr. President, in 1917 they did not have very many vehicles in 
Alaska. We do not have very many today. But the point is, we have 
trails. We have to have the right, as evidenced by those trails, as we 
look at the restrictions that Federal withdrawals have placed on our 
State. And here they are, Mr. President. How in the world are we going 
to get across Federal lands? All these colors--the brown, the green, 
the cream--these are the Federal holdings in the State of Alaska. The 
only thing that belongs to the State that we have access through are 
the white areas.
  The point I want to make is, how in the world are we going to get a 
highway across from the Canadian border to the Bering Sea without 
crossing Federal land? We cannot do it. How are we going to get north? 
How are we going to cross all these Federal areas without this basic 
right that we had when we became a State 38 years ago? We are simply 
not going to be able to do it, unless we have this law that states 
specifically that the interpretation of a highway is for pedestrians, 
pack animals, to qualify. Because, Mr. President, if you look again at 
Alaska today, this is our highway network. That is where we are. That 
is our highways, 1,300 miles. We have a road north-south to Seward, a 
road over to the Canadian border. We have nothing to the west--
absolutely nothing. This is an area one-fifth the size of the United 
States.

  My point is, under the law as it is currently stated, you must have 
proof of a traditional route across public land, prior to 1976, to 
qualify. The Secretary proposes to change that. He would say you have 
to have had a road. That eliminates Alaska. It eliminates much of Utah, 
and several other Western States are affected. That is where we are.
  I am reading from a definition of ``highway.''

       The term ``highway'' is the generic name for all kinds of 
     public ways. Whether they be carriage ways, bridle ways, foot 
     bridges, turnpike roads, railroads, canals, ferries, 
     navigable rivers, they are considered highways.

  But that is going to change under this definition. So, clearly what 
we are talking about is keeping in place the law that has been for 130 
years in the departmental regulations as they have been codified since 
1932, and again in 1994.
  The fact is, if R.S. 2477 was not in existence prior to October 1976, 
it will not and it cannot be, by definition, created now. So there is 
no threat here to public land. There is no threat to the parks. This is 
all a smokescreen.
  The reality is, we will simply be assured of having the rights-of-way 
across public land that we were promised as opposed to it being taken 
away. So I urge my colleagues to recognize the significance of what 
this inclusion means, why it is appropriate that it be there, why it is 
an emergency right now, and why I encourage all Members to reflect on 
the significance of this. The motion proposed by the Senator from 
Arkansas should be stricken, because it simply does not belong in the 
sense of his offering the amendment to strike this section.
  So, I see my friend, the senior Senator from Alaska, is seeking the 
floor. I yield the floor at this time, other than again to remind all 
my colleagues, what we are trying to do here is keep in place a law 
that for 130 years has provided us with the protection, the assurance 
that we would be able to cross public land if, indeed, we had valid 
proof that we had used the routes prior to 1976. So we would have the 
assurance of being able to proceed with the orderly development of our 
State.
  I yield the floor.
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Mr. STEVENS. Mr. President, I have been involved in this issue now 
for a substantial portion of my life. I was in the Interior Department 
during the Eisenhower administration, 1955 to 1961. At the end of that 
period, I was the Solicitor of the Interior Department. During that 
period, we obtained statehood for Alaska. The whole question of what 
our rights would be as a State was debated at length, not only in the 
Congress but in the White House and the old Bureau of the Budget.
  The Revised Statute 2477 was the basis for really the modernization 
of the West. And when we came to the period of the seventies--and I was 
here as a Senator--when the proposal was made to repeal R.S. 2477 in 
1974, I had a very long debate with Senator Haskell of Colorado at the 
time, and we subsequently did not pass the bill in that Congress.
  In 1976, when the rights-of-way bill was brought up again, we 
discussed at length the protections that would assure that the 
commitment that was being made to the Western States, in general, and 
Alaska, in particular, would be ironclad. So at my insistence, the 1976 
act contained three specific statements.
  The first one is in section 701(a):

       Nothing in this Act, or in any amendment made by this Act, 
     shall be construed as terminating any valid lease, permit, 
     patent, right-of-way, or other land use right or 
     authorization existing on the date of approval of this Act.

  Again in section 701(f):

       Nothing in this Act shall be deemed to repeal any existing 
     law by implication.

  And in section 701(h):

       All actions by the Secretary concerned under this Act shall 
     be subject to valid existing rights.

  Starting in 1993, the Secretary of Interior attempted to ignore all 
of those guarantees and say that as manager of the Federal lands, he 
has the inherent right to ignore that law and to issue regulations to 
change this concept, so that the valid existing rights will be 
determined by Federal law and not by State laws as they have for 130 
years. There has never been, before this administration, any attempt to 
define the rights-of-way across Federal land by Federal law. They have 
been determined by the general law of each State, and ours are no 
exception in Alaska.
  But very clearly, we have three times now spoken here in the Congress 
to try and stop this move by the Secretary of the Interior and his 
Department to change this tradition. We did it in the National Highway 
System Designation Act, we did it in the Interior appropriations bill 
for 1996, and the Interior appropriations bill for 1997. Now, however, 
what we are trying to stop is his announcement of a policy which will 
govern all Federal lands. It is not regulation, it is a statement of 
policy now.

[[Page S4058]]

Congress prohibited the use of funds, we prohibited the issuance of 
regulations, but now he says he is going to announce a policy, a new 
edict, and that is that there is a Federal law pertaining to rights-of-
way and they will define that and it will not be based on State law at 
all.
  What we are talking about, as my colleague from Alaska has said and 
the Senators from Utah have said, is the process by which all of the 
West obtained the rights-of-way that ultimately became the road system 
of the West.
  In Alaska, because of our situation prior to statehood, the Federal 
Government built the highways when we were a territory, and it built 
one main road. It was really built for the aid of the war effort. The 
Alaska highway came up through Canada, and then came down through 
Alaska at our eastern border, and came to our major city of Anchorage. 
It came through Fairbanks and then down into the Anchorage area. That 
was one main road. Since then, we have built some arterials off that. 
We had a long time convincing the Congress that we were a State and we 
ought to have equal treatment under the National Highway Acts. Now we 
have that.
  Now we come to the period where this administration wants to assert, 
by virtue of Federal supremacy, a concept that, on over 100 million of 
acres of land that were reserved by the Congress in 1980--and, 
incidentally, they were specific in terms of recognizing valid existing 
rights at that time, too--now this administration wants to say none of 
these rights under the Revised Statute 2477 shall be recognized on 
Federal lands in Alaska, period.
  The Federal Government owns more than 68 percent of Alaska's land. As 
my colleague has pointed out, the State of Alaska is a checkerboard 
with Native land, Federal land, and State land and very little private 
land. But the right of access to the private land through the State 
land and the Native land is of necessity such that rights-of-way across 
some Federal lands are required if we are to have a road system to 
serve the State as a whole ultimately.
  This is not a simple question for Alaskans. What it really comes down 
to is a question of can we trust the Federal Government? We had a long 
debate here that went on for 3 years. The record is absolutely clear 
that the Congress, at that time, agreed that we had these rights and 
that they had to be protected if Revised Statute 2477 was to be 
repealed. I have to say, from 1976 to 1993, there was no question about 
it. But now, because of the onslaught of a direct mail advertising 
campaign by extreme environmental groups who have painted us as being 
the arch devils of management, they claim that we are trying to 
establish some new rights across Federal lands. By definition, none of 
the rights that could vest after 1976--they are all prior to 1976, and 
they were protected by Congress and they were across lands that were 
not reserved in 1976.

  I think the real problem here is the people who are doing this are 
unwilling to accept the decisions made by Congress. Every Congress has 
said we are not going to interfere with valid existing rights. Again, 
these rights are vital to a State such as ours. I really cannot deal 
with it without going back over a whole history of what has been done 
in our State.
  Let me say, our amendment is simple. It continues the same policy the 
Congress has voted on three times now, and it says this new policy 
concept of the Department of the Interior--not a regulation, not a 
rule, both of those were prohibited by past actions, not an order that 
was also prohibited--but this new concept of a policy, they can't do it 
in any way. If they want to do it, they can send up a proposal to 
Congress, let us debate it, and we will see what the law will be for 
the future, and we will see as a result of what they are doing if there 
is any compensation due to the people whose rights are condemned by 
Federal action. This is a way around the whole concept of trying to 
compensate people for the absolute extinguishment of rights that were 
created and protected by Congress through past actions.
  Some have suggested that almost a million new miles of roads and 
claims would be asserted by virtually anybody, anyone. Mr. President, I 
tire at trying to answer false statements like that. As my colleague 
has said, we have 18,000 miles of roads in an area one-fifth the size 
of the United States now. We can only build those roads with highway 
funds that are available, and at the cost of roads, it is just not 
possible for us to contemplate a million miles of road. We are not 
contemplating even doubling what we have now. We are contemplating just 
some small roads to connect various villages and communities that are 
near the road system that exists now, and even that will be over a 
period of years.
  This is a process that we believe that the Congress ought to 
recognize. We create no new rights-of-way across Federal land. We only 
recognize those that were in existence before 1976, and we preserve 
those rights once more on the same basis that they have been available 
throughout this country for 130 years based upon State law. The courts 
have asserted, past administrations have asserted--I don't know of 
anyone, as I said, in the past who has asserted that there was a 
Federal law that determined how rights-of-way were created across 
Federal land.
  There is the specific right-of-way concept where people are coming 
and asking permission to cross Federal land to build pipelines or build 
transmission lines for various uses of Federal land, and that is what 
the Trans-Alaska Pipeline Right-of-way Act was all about.
  But we believe that in terms of what we are doing now, I am told--I 
don't know if Senator Murkowski mentioned this--we asked the Department 
of Natural Resources of Alaska to tell us what rights-of-way might be 
capable of being asserted. There were 1,900 originally reviewed, and 
700 were found to be on State land. Of the remaining 1,200, about 560 
appeared to qualify as potential rights-of-way. The State deferred 400 
of those because they crossed Federal withdrawals. That is to be looked 
at at a later time, and we are now proceeding with very few of them. I 
have been told that so far, we have used about 10 of these rights-of-
way in the time that we have been a State, which is now almost 40 
years. Mr. President, you don't use them until the highway system gets 
to the point where you can use them to extend it on out. So Congress 
protected those rights-of-way for the future so that when the highway 
system starts to expand, it will be possible to get to those 
communities.
  My last comment to the Senate will be this. My colleague and I labor 
here for land that is so far away that we are closer to Tokyo than we 
are to Washington, DC. We spend a great deal of our time trying to 
convince the Congress to keep the commitments that were made to us as 
we sought and fought for statehood because we wanted to be partners in 
the Union.
  Now it seems that people from other States are doing everything they 
can to turn us back into a federally dominated territory. That is why 
we are here on the floor. We wanted to be a State to protect our 
rights. That is our No. 1 duty, to see to it that the commitments made 
to our State are kept by the Federal Government. And it is very hard to 
do right now. It is very hard to do when there are people in the 
administration who want to just be those who dictate to our State.
  I cannot emphasize this enough to the Senate, this is not a new 
subject. We have done in this bill what we did three times before. We 
have acted to prevent the Secretary of the Interior continuing on this 
course of trying to change the law that guarantees the protection of 
valid existing rights under Revised Statute 2477.
  Mr. President, I mentioned my own background on this subject. But I 
have to say, one of the reasons that I am concerned about it is 
because, as a young lawyer in the Interior Department, I remember some 
of the fights that existed in the 17 Western States that had public 
lands before we became a State. This same battle took place before, but 
in different ways, where agencies of the Federal Government just tried 
to block the use of lands. But no one ever thought of creating a 
Federal rights system and taking unto themselves the power to determine 
what rights existed prior to that time.
  That is what the Department is trying to do now. They are trying to 
say, ``Wait a minute. We're the managers of this land. All this land is 
still under our domination and, therefore, we're

[[Page S4059]]

going to tell you how you cross this land.''
  The Department of the Interior has done something--I used to tell our 
people in the Interior Department when I was there: ``We do not own 
this land, you and I. We are the stewards of this land. It's owned by 
the people of the United States.'' But if you hear these people talk 
now in the Department of the Interior, it is their land. They own it.
  I have to tell you, Mr. President, it will be a cool day in Hades 
when Alaskans will allow them to do that. I hope that the Senate will 
stand by us in this battle, which is just a continuation of battles we 
have fought here on many other issues to protect our rights as a State.
  These rights ultimately will be used by the State of Alaska to build 
public highways. We do not have a county system. Our population base is 
small. We have a borough system, but basically the roads in Alaska are 
built by the State. So in our State the rights are basically protected 
by the State and the State nominates those areas where it wants to 
proceed to utilize the rights-of-way that were created prior to 1976.
  I do think, Mr. President, that if there is anything that I would 
like to leave with the Senate, it is that at some time or other every 
Senator is going to have to come out here and say, ``In the days gone 
by, a compromise was reached regarding an issue in my State, and the 
decision was made and put into law.''
  All I want you to do is recognize an act of a prior Congress in 
committing the United States to a course of action that must be 
followed now if States rights are to mean anything. This is a basic 
States rights issue to me, to have the ability to provide the expansion 
of the transportation system to meet the growing needs of people in a 
frontier area. If the Senator's amendment is adopted, the Secretary of 
the Interior will be free to issue an edict that future rights in 
Alaska will be determined by the Secretary of the Interior.
  What does that do? It returns us back to 1958, to the territorial 
days. We would not be a State. No State is dominated by a Cabinet 
officer. We were as a territory. We had an Office of Territories in the 
Department of the Interior when I was at the Department of the 
Interior. And Alaska was one of the desks in the Office of Territories. 
That person carried all of the decisions of the Secretary of the 
Interior with regard to Alaska. As a matter of fact, Alaska used to 
call him the ``Great White Father.'' Well, there is not a Great White 
Father for Alaska now. There are 100 Senators here and 435 people over 
there who have something to do with making decisions regarding what 
happens to the rights of the people of the State of Alaska.
  I urge the Senate to stand by us and maintain the course, that we 
will live by the law and not by edicts of changing personnel in 
changing administrations as the years go by.
  Mrs. BOXER. Mr. President, I rise today to discuss Senator Bumpers' 
amendment to strike section 310 of the supplemental appropriations bill 
related to rights-of-way across public lands.
  I support Senator Bumpers' amendment because it strikes language in 
the supplemental appropriations bill which is not only highly 
controversial and bad for public lands, but it also has nothing to do 
with emergency funding--the purpose of this supplemental appropriations 
bill.
  Rights-of-way is a principle of property use that allows for 
continued use of a pathway across public land when it can be proven 
that the path existed before the land was reserved for Federal 
designation--so a road that existed prior to the designation of the 
Yosemite National Park would be a valid right-of-way.
  In our Nation, any individual or local government can claim a right-
of-way. The validity of this claim must then be determined.
  In 1988, then Secretary of the Interior Hodel developed policy 
guidelines for dealing with right-of-way claims over public land.
  The Hodel policy effectively deferred authority over rights-of-way 
determination to States and provided very broad guidelines to assist 
States in making these determinations. The guidelines allowed for a 
right-of-way to be granted if merely a large rock or vegetation was 
removed from an area. Once a right-of-way authority is granted, a small 
dirt footpath through Yosemite National Park could be converted to a 
six-lane paved highway.
  The Hodel policy makes it much easier for right-of-way claims to be 
asserted through many of our most precious environmental areas--
including designated national parks, wildlife refuges, and wilderness 
areas.
  In January 1997, Secretary Babbitt revoked the Hodel policy, and 
instituted revised policy guidelines in an effort to put the Federal 
Government back in charge of protecting our remaining Federal lands.
  The Babbitt policy establishes a Federal process whereby right-of-way 
claims are evaluated. This policy would not allow a six-lane highway to 
tear up our precious national parks. It would ensure the rights-of-way 
be granted only for major roads that require such authority. And any 
alteration of the land would be susceptible to all Federal 
environmental regulations.
  Secretary Babbitt is unable to follow normal procedure for 
regulations--proposing rules in the Federal Register, receiving public 
comment, and promulgating final rules--because of provisions included 
in the past two Interior appropriations bill which prohibit such 
actions. In fiscal year 1996, the Secretary was entirely prohibited 
from promulgating rules concerning rights-of-way; and for fiscal year 
1997, the Secretary is only able to propose such rules if expressly 
authorized by an act of Congress.

  If we are not allowed to move forward with Secretary of Interior 
Babbitt's policy, States will have the authority to determine the 
validity of existing rights-of-way claims. We therefore create the 
potential for destruction of valuable Federal lands--lands that belong 
to all the people of our Nation.
  Vast areas may be prohibited from wilderness designation because of 
right-of-way claims that scar the land. In my State of California, the 
current number of claims is relatively low. However the potential for 
claims is thought to be quite high. The Bureau of Land Management 
estimates that the 12 claims currently pending cover hundreds of miles 
of roads through California's unique wilderness areas.
  Remaining land in California's Mojave Desert, Death Valley, and 
Joshua Tree poses a serious potential problem should there be a right-
of-way claim.
  With the California Desert Protection Act, Congress was finally able 
to protect these unique lands. The language of the bill now threatens 
the very protection we worked so hard to achieve.
  There are few remaining natural lands which have been held in trust 
by the Federal Government for all people to enjoy. These precious 
natural resources must be held to a high uniform standard which protect 
only valid rights-of-way claims while promoting environmentally 
responsible management of our Federal lands. These are Federal lands, 
and as such should be governed by Federal policy and procedure.
  In a letter to Chairman Stevens and Senator Byrd, Director of the 
Office of Management and Budget Frank Raines and Secretary of Interior 
Bruce Babbitt have both stated that they will recommend the President 
veto this legislation should this language be included. This is not the 
time to risk veto of legislation which will provide necessary aid and 
disaster relief to those who desperately need it.
  We saw the disastrous results that occurred from the salvage logging 
rider. This amendment is just that--an unnecessary, antienvironmental 
rider which could devastate our remaining public lands.
  I urge my colleagues to support Senator Bumpers' amendment. We must 
not prevent the administration from establishing necessary procedures 
for dealing with remaining right-of-way claims.
  Mr. BAUCUS. Mr. President, I rise today to speak in favor of Senator 
Bumpers' motion to strike section 310 from the Supplemental 
Appropriations Act. This section should be removed from the 
Supplemental Appropriations Act for two reasons. First, it could harm 
our Nation's wilderness areas, national parks, and wildlife refuges. 
Second, it is wrong as a matter of principle to tie controversial 
issues to

[[Page S4060]]

flood disaster relief. We simply should not play politics when people's 
lives are in the balance.
  In 1976, Congress enacted the Federal Land Management Policy Act and 
thus repealed an 1866 statute that allowed practically unrestricted 
road construction across our public lands. Congress agreed, however, to 
recognize the legitimacy of highways constructed as of 1976.
  In essence, the appropriations rider reinstates a 1988 policy that 
broadly defined highways to include foot paths, pack trails, and even 
dog-sled routes. If these paths are recognized as highways constructed 
prior to 1976, then they can be upgraded and enlarged to full roads, 
even if they run through existing wilderness areas, national parks, or 
wildlife refuges. These areas are national treasures. They are visited 
by millions of Americans every year. We should not let them be roaded 
without careful thought and deliberation.
  This rider hits close to home for me. This provision could allow 
roads to be built through spectacular wilderness in Montana. Often, we 
have to speculate about what the effect of a piece of legislation will 
be. In this case, speculation is not necessary.
  An R.S. 2477 claim has been filed to build a road through the middle 
of one of Montana's most popular wilderness areas. Fortunately, that 
claim was recently rejected by the Department of the Interior. If this 
rider becomes law, this and other claims could be granted with 
devastating effect to our Nation's wilderness areas.
  Equally disturbing, this section could prevent Montana roadless areas 
from being designated as wilderness in the future. I have carried bills 
in the Senate to designate Montana's spectacular Rocky Mountain Front 
as wilderness. This is an area of soaring mountain peaks, crystal clear 
streams, and untrammeled meadows. Bills to designate this area as 
wilderness have received bipartisan support and have passed the Senate.
  If section 310 becomes law, the Rocky Mountain Front and other 
roadless lands in those bills could be denigrated. If section 310 
becomes law, the Senate may lose its right to decide whether to 
designate those lands as wilderness.
  And section 310 applies to more than wilderness lands. Section 310 
would even affect our national parks and wildlife refuges.
  But this vote is about more than the roads that could be built across 
our Nation's wildlands.
  This vote is also about people who have suffered through an unusually 
harsh winter in Montana and are seeking disaster relief. This vote is 
about people in North Dakota who have suffered devastating floods.
  Let me read what the paper in my State's capitol wrote yesterday 
about Section 310. In an editorial entitled ``An Ugly Kind of 
Politics,'' the Helena Independent Record writes:

       This sort of thing might be business as usual in 
     Washington, but we think the specter of Clinton being forced 
     to veto a flood-relief measure because of tacked-on 
     skulduggery is way out of line. We suspect it wouldn't sit 
     too well either with flood victims in the Dakotas--and, 
     perhaps, potential flood victims in Montana as well. Politics 
     is seldom pretty, but this is downright ugly.

  Mr. President, I agree with this assessment, and I ask unanimous 
consent that the complete text of this editorial be printed in the 
Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                  [From the Helena Independent Record]

                        An ugly kind of politics

       It might not be anything new to the halls of the Congress, 
     but that doesn't make recent stealth legislation by Alaska's 
     senior senator any easier to take.
       Sen. Ted Stevens, R-Alaska, is chairman of the 
     Appropriations Committee, which is writing an emergency bill 
     authorizing $5.5 billion in relief for flood victims.
       This is vital, must-pass legislation that everybody agrees 
     needs quick approval. So Stevens tacked onto the bill a pet 
     piece of new legislation that would make it far easier to 
     build roads through federal parks, refuges and wilderness 
     areas.
       The measure, based on a Civil-War era law, would give the 
     government less control over right-of-way claims.
       Contending the legislation would make the federal 
     government effectively powerless to prevent the conversion of 
     foot paths, sled-dog trails, jeep tracks, ice roads and other 
     primitive transportation routes into paved highways, Interior 
     Secretary Bruce Babbit urged President Clinton to veto the 
     measure if Stevens' provision remains in the bill when it 
     reaches his desk.
       This isn't the only deceptive legislation going on. The 
     Alaska Wilderness League is complaining that Stevens and 
     other representatives from that state are trying to rig the 
     federal budget process to allow oil drilling in the Arctic 
     National Wildlife Refuge.
       The league says lawmakers may have to vote against a 
     balanced budget deal to save the wilderness area.
       According to oil-drilling foes, Alaskan politicians are 
     working to have colleagues include estimated oil drilling 
     revenues of $1.3 billion into budget allocations without 
     mentioning that the revenues will have to come from opening 
     the wildlife refuge to development.
       This sort of thing might be business as usual in 
     Washington, but we think the specter of Clinton being forced 
     to veto a flood-relief measure because of tacked-on 
     skulduggery is way out of line. We suspect it wouldn't sit 
     too well either with flood victims in the Dakotas--and, 
     perhaps, potential flood victims in Montana was well. 
     Politics is seldom pretty, but this is downright ugly.
  Mr. BAUCUS. Mr. President, the American people are losing faith in 
our political system. And they are losing faith because of the way that 
politics is played. Because of this type of rider.
  How will the disaster victims in the Dakotas feel if their aid is 
delayed because some want to play a game of poker where the stakes are 
incredibly high? Where the stakes are the blankets that flood victims 
need to stay warm or where the stakes are pumps that are needed so that 
people can drink clean water?
  And what of the people in other states?
  Oregon stands to receive almost $140 million from the Supplemental 
Appropriations bill.
  Louisiana, $116 million.
  For other states such as Maine, Vermont, and Virginia, the amount of 
the funds is somewhat smaller, but the need is no doubt just as great.
  People in all fifty states receive funds from this bill. People in 
all fifty states will be affected if we allow politics to delay this 
bill.
  This money will help Americans who have lost their homes, their 
businesses, and all of their earthly possessions. To block this funding 
or to delay it through the use of these types of riders is just plain 
wrong.
  To force the American people to accept new roads through their 
national parks or wilderness areas, just to get their disaster relief 
is equally wrong.
  Mr. President, the Supplemental Appropriations bill is the wrong 
place to play politics. I ask my Senate colleagues to vote to strike 
these riders as a matter of policy and as a matter of principle.
  Mr. STEVENS. Mr. President, as I have already reviewed in some 
detail, section 2477 of the Revised Statutes, R.S. 2477, granted 
rights-of-way for the construction of public highways across unreserved 
Federal lands.
  Congress passed this law in 1866 and the provision was later 
recodified at section 932 of title 43 of the United States Code.
  By permitting travel across Federal lands, R.S. 2477 facilitated the 
settlement of the West. The rights-of-way granted pursuant to R.S. 2477 
remain land access routes for rural residents.
  R.S. 2477 was repealed in 1976 by section 706 of the Federal Land 
Policy and Management Act [FLPMA]. Again, I point out to my colleagues, 
section 701(a) of FLPMA expressly states that ``Nothing in this Act * * 
* shall be construed as terminating any valid lease, permit, patent, 
right-of-way, or other land use right or authorization existing on the 
date of approval of this Act.''
  Further, section 701(f) says that nothing in FLPMA ``shall be deemed 
to repeal any existing law by implication.'' And section 701(h) 
specifically states that ``All actions by the Secretary concerned under 
this Act shall be subject to valid existing rights.''
  Three times in the same act Congress made it clear that nothing in 
FLPMA gave the Secretary of the Interior the power to terminate valid 
existing rights. We meant it then and we mean it now. The Secretary is 
ignoring the law and all existing precedents with his proposed policy 
that effectively terminates valid existing rights under R.S. 2477, 
which for over 120 years have been determined under State law.
  Regulations in place in 1976 provided that the validity of the right-
of-way should be determined by State law. Likewise, Federal courts have 
found State property laws control assertions of an R.S. 2477 right-of-
way.
  In Alaska, which we still call the Last Frontier, R.S. 2477 rights of 
way are still being used by miners, trappers, and others traveling 
across specific tracts of unreserved public land.

[[Page S4061]]

  The Interior Department in the 1980's saw the need for the Federal 
Government to recognize these trails for what they were--public access 
routes. Interior adopted a policy in 1988 which for the most part kept 
Alaskans out of court.
  Elsewhere, Federal courts were being asked to quiet title on lands 
with an R.S. 2477 right of way, and these courts looked to State law to 
decide if there had been construction of a highway.
  In August 1994, Interior published new proposed regulations which 
would have established Federal definitions for key terms in R.S. 2477. 
According to Interior, where there was a conflict between the Federal 
definitions and State law, under the proposed regulations the Federal 
rules would prevail.
  This approach would have redefined existing property rights. It would 
also have the incongruous result of having some R.S. 2477 rights of way 
quiet title actions adjudicated under State law and others under 
Federal law.
  Soon after Interior proposed these new rules, resolutions were 
introduced in the House and Senate urging the Secretary to withdraw 
them. The comment period was subsequently extended through August 1995.
  In late 1995, Congress placed a 1-year moratorium on any rulemaking 
regarding R.S. 2477 rights of way. The fiscal year 1996 Interior 
appropriations law, enacted in 1996, also included a similar 
moratorium.
  Congress acted a second time in 1996. Section 108 of the General 
Provisions of the fiscal year 1997 Interior appropriations law 
permanently requires congressional authorization of any rules and 
regulations developed by agencies to address the recognition, validity, 
and management of R.S. 2477 rights of way.
  This measure, agreed to by Congress last fall, was not vetoed, nor 
was there ever a threat of veto that I was made aware of.
  However, in January 1997, the Secretary sought to evade this law by 
issuing ``policy guidance'' which provides a process for recognizing 
R.S. 2477 claims only ``where there is a demonstrated, compelling, and 
immediate need.'' This process is similar to that in the disputed 
regulations which Congress has prohibited by law since 1995. Issuance 
of this policy circumvents the legal requirement to have congressional 
approval of agency rulemaking concerning R.S. 2477 rights-of-way.
  Section 310 of the supplemental appropriations bill, S. 672, 
prohibits the use of funds appropriated for fiscal year 1997 and 
thereafter ``to promulgate or implement any rule, regulation, policy, 
statement or directive'' issued after October 1, 1993, regarding the 
rights-of-way Congress granted by R.S. 2477. The October 1, 1993, date 
makes it clear that Interior cannot do by policy what it by law cannot 
do by regulation. Under section 310, Interior can continue to implement 
Federal policy with respect to R.S. 2477, but only those policies and 
regulations previously agreed to prior to the attempted change that 
Congress has repeatedly rejected.
  Section 310 is needed to enforce the requirement that Congress first 
authorize any rules regarding R.S. 2477 rights-of-way. Allowing the 
January 1997 policy to remain in place vitiates the Administrative 
Procedures Act and the express directives of the Congress, which were 
approved by the President.
  Section 310 will not, as some suggest, open up Alaska's wilderness 
areas and parks to almost a million new miles of roads upon the 
assertion of claims by ``virtually anyone.''
  First, as I have said, section 310 only tightens the standing mandate 
that agencies obtain specific authorization from Congress, which 
includes our elected representatives of public lands States, before 
issuing rules that would effectively deny valid, existing property 
rights under R.S. 2477 in those States.
  In short, this provision creates no new rights-of-way across Federal 
land which were not in existence before 1976. It merely preserves 
rights-of-way which were established at least 20 years ago, but still 
have not been recognized by the Interior Department.

  R.S. 2477 rights of way are not exempted from environmental, health 
and safety, and other laws to protect the public.
  Second, with respect to all existing rights of way, I am assured by 
the Governor of Alaska that our State will not be paved over. The 
Alaska Department of Natural Resources completed a study recently to 
identify the list of rights of ways my State might assert as public 
highways under R.S. 2477.
  Some 1,900 were initially reviewed, but 700 were found to be on State 
land and not subject to this Federal law.
  Of the remaining 1,200, only 558 appear to qualify as R.S. 2477 
rights of way.
  So far the State of Alaska has filed only one quiet title action.
  The State of Alaska also advises me that it will not file rights of 
way across section lines, unless of course there is a preexisting trail 
that otherwise constitutes an R.S. 2477 right of way.
  Asserting rights of way across section lines alone would be a 
fruitless exercise. Mere geography tells us that we don't need roads 
across mountain tops.
  Cost is another reason. I'm advised that it costs $6 million to build 
1 mile of road in my State.
  I proposed section 310's funding restrictions in good faith, with the 
confidence of having stood on this floor over 20 years ago debating the 
legislation that ultimately became FLPMA.
  On July 8, 1974, the Senate debated S. 424, the bill that the Senate 
passed in the 93d Congress and was reintroduced in the 94th Congress as 
S. 507. S. 507 was the bill that ultimately became FLPMA.
  In July 1974, I was assured by Senator Haskell, chairman of the 
relevant subcommittee within Interior and Insular Affairs, that our 
young State would have the same chance as other Western States to 
develop a road system based on the pattern of use its settlers 
established and the laws the State enacted.
  Senator Haskell told this Chamber it was the intent of Congress that 
all existing R.S. 2477 rights-of-way would be determined according to 
the law of the State the right-of-way was in. In fact Senator Haskell 
cited a specific North Dakota case, Koleon versus Pilot Mound Township, 
as the basis for the committee's understanding of the law. That case 
said an R.S. 2477 right-of-way is established ``if there is use 
sufficient to establish a highway under [the] laws of the state.'' I 
refer my colleagues to the Congressional Record of July 8, 1974, page 
S22284.
  Today, I am proposing that we uphold the intent of the Congress of 20 
years ago and the intent of the 104th Congress as well.
  Last fall Congress agreed to a provision in the fiscal year 1997 
appropriations law requiring agencies to seek congressional 
authorization of R.S. 2477 rulemaking. Section 310 of the supplemental 
asks nothing new, it merely prevents Interior from doing by agency 
policy what Congress prohibited it from doing by formal rulemaking.
  I urge my colleagues to reject this amendment so that Interior 
understands it cannot circumvent the will of Congress through sleight 
of hand.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. Does the Senator yield the floor?
  Mr. STEVENS. I was going to go to this other desk and see if I could 
get the Senator from Arkansas into a colloquy regarding the timing of 
the votes that we might have.
  Mr. BUMPERS. I am very amenable, I say to the Senator. I would 
suggest a 20-minute time limit on the remainder of this amendment 
equally divided.
  Mr. STEVENS. May I ask that the cloakrooms check that out and get us 
a time that is agreeable. The timeframe is agreeable to me, but I think 
some Members may be out of the building now, and we want to get the 
time set.
  But why doesn't the Senator take the floor now?
  I will yield the floor.
  As soon as we can get worked out between the leadership on the two 
sides the timeframe that can be agreed to as to the vote on this 
amendment and on the D'Amato amendment----
  Mr. BUMPERS. I understand that our side needs to check. We have 
people coming and going. I assume that is what the Senator has concern 
about.
  Mr. STEVENS. That is correct.
  Mr. MURKOWSKI. I believe there may be a second degree pending.
  Mr. BUMPERS. There will not be a second degree.
  Mr. STEVENS. It is my understanding that the Parliamentarian will 
rule that the other two amendments are not properly drawn under the 
process of cloture for those to be considered.

[[Page S4062]]

  I will state, though, that the suggestion made by Senator McCain was 
a good one. When we get to conference, if we do with this provision, I 
intend to find some way to accommodate his suggestion that we ask the 
Secretary to come forward with a proposal to be debated that might set 
the policy for future utilization of these rights-of-way throughout the 
West. We will pursue that in conference.
  But there will be no other amendment, my friend.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. BUMPERS. Mr. President, I will not belabor the points that have 
been made time and again here.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUMPERS. Mr. President, I had a Senator ask me earlier if I felt 
that I was right about this amendment. Let me answer that question for 
any Senator who would ask the same question. I have never felt more 
comfortable with a position in my life than I do on this. It has 
nothing to do with Alaska or Utah or Idaho. What it has to do with is 
saying this language of the senior Senator from Alaska, No. 1, has no 
business in this bill; No. 2, if it did, it is a terrible amendment; 
No. 3, men and women of good will could sit down and work out a 
sensible policy for the Department of the Interior and require them to 
report back to us with regulations or something else.
  But under the existing law, what the amendment of the Senator from 
Alaska does is to return the determination of whether these thousands 
and hundreds of thousands of miles of claimed rights-of-way constitute 
a highway within the definition of the Hodel policy. It is a question 
of whether or not we are going to allow rights-of-way simply because 
they were claimed to be there before 1976 when we repealed R.S. 2477, 
whether we are going to allow the use of those rights-of-way to cross 
wilderness areas, national parks, monuments, all kinds of protected 
Federal areas.
  I submit to you that the people of this country, if they knew the 
substance of this debate, that we were actually considering the Stevens 
amendment to this bill, if they knew what the implications of that 
were, they would be up in arms. I cannot believe--not to denigrate my 
good friends from these Western States who have a deep and abiding 
interest, an understandable and deep and abiding interest, in this 
issue--I cannot believe that more than 3 percent of the people of this 
country would condone granting applications for highways across these 
areas because there was some kind of a footpath or a trail or something 
else, even vegetation that had been tromped down.

  Under the Hodel policy in 1988, Donald Hodel had a policy that said: 
If you have cut high vegetation, you had a lot of weeds and you cut 
them down, that constitutes a highway.
  Have you ever heard anything as ridiculous as that in your life?
  Mr. MURKOWSKI. Would the Senator from Arkansas yield for a question?
  Mr. BUMPERS. Yes.
  Mr. MURKOWSKI. I thank my friend.
  I wonder if the Senator from Arkansas feels it is appropriate that 
the Secretary of the Interior arbitrarily has gone ahead and changed 
the definition of what a highway was. Is it right for the Secretary to 
take a previous policy that was worked out in conjunction with the 
States where there was a definitive highway definition in the 
historical terms--and I quote--``as a definite route or right-of-way 
that is freely open for all use, it need not necessarily be open to 
vehicular traffic, or a pedestrian or pack animal trail may qualify''--
and as a consequence, isn't it true that this was the policy of the 
Department of the Interior until earlier this year when Secretary 
Babbitt, behind closed doors--not a public policy; behind closed doors, 
without consultation--unilaterally changed this definition? And isn't 
it true that the new definition now reads, ``a thoroughfare used prior 
to October 21, 1976, by the public for the passage of vehicles carrying 
people or goods from place to place''? He changed the definition.

  Is that, I ask my friend from Arkansas, appropriate and fair and part 
of a public process, or, indeed, is that not a simple dictate by the 
Secretary who arbitrarily changes the interpretation of what was 
Federal law? Is that right, I ask my friend from Arkansas, and correct?
  The PRESIDING OFFICER (Mr. Gregg). The Senator from Arkansas.
  Mr. BUMPERS. Let me answer the question this way, Senator. I did not 
hear a single soul complain when Donald Hodel established his policy in 
1988. It is only the Babbitt policy of 1997 that seems to be 
objectionable.
  There is no question, if you want to raise the question about the 
authority of the Secretary to issue a policy, if Secretary Hodel has 
the right to issue a policy, why does his successor, Bruce Babbitt, in 
1997, not have the right to reverse that policy?
  Let me go ahead and say that the Senator quoted the Hodel policy 
correctly, but he did not go quite far enough. Here is what Donald 
Hodel's policy said about the requirements needed to prove what 
constitutes construction of a highway: ``Construction is a physical act 
of readying the highway for use by the public according to the 
available or intended mode of transportation, foot, horse, vehicle, et 
cetera.'' Horse--that is right--vehicle, foot, those all constitute 
highways.
  His policy goes on to say, here are some examples of what constitutes 
construction of a highway: ``removing high vegetation.'' Go out and cut 
the weeds, it becomes a highway. ``Move a few large rocks out of the 
way,'' it becomes a highway, or ``filling in low spots''--all of those 
may be sufficient to show construction for a particular use.
  Now, Senator, let me ask you a question, does that make any sense to 
you?
  Mr. MURKOWSKI. I will respond relative to the issue that is before 
the Senate here, and that is the manner in which the Secretaries--Hodel 
on one occasion and, today, Secretary of the Interior Babbitt--have 
acted.
  First of all, as I indicated, Secretary Babbitt, behind closed doors, 
without consultation with Western States, unilaterally changed the 
definition. Don Hodel did not. Don Hodel worked out a policy in 
conjunction with the States defining a highway and its history, and it 
was done in consultation with the States.
  My friend from Arkansas should recognize that is a significant 
difference. This Secretary is moving on his own volition to interpret 
as he sees fit. The previous Secretary of the Interior brought in the 
Western States affected and they worked out a definition and a process. 
Now the definition has changed to any vehicles, and the appropriateness 
of that is what I question the Senator from Arkansas with regard to the 
motivation.
  It is here that one Secretary developed a public process.
  Mr. BUMPERS. Mr. President, I reclaim the floor.
  We ought to pin a Medal of Freedom on Bruce Babbitt.
  Mr. MURKOWSKI. Where?
  Mr. BUMPERS. He revoked a policy that said any time you mow high 
weeds, apply to us and we will give you a right-of-way to build a four-
lane highway over that footpath. Move a few rocks out of the way, we 
will consider that a highway and allow you to build on it. Fill in a 
few low spots, we will make it a highway and you build it. Even if it 
is across a national park or across a wilderness area or across a 
national monument, a historic area that we have set aside. Can you 
think of anything more insane than giving States the right to build 
highways across Federal lands no matter where they are, simply because 
somebody mowed some high weeds or because somebody moved a few rocks?
  While I am at it, Senator, before I get into it with you, let me also 
point out, here is the Babbitt policy. This is the policy that reversed 
the 1988 Hodel policy. I want you to listen to this. I have a letter 
from Bruce Babbitt in which he says he will urge the President to veto 
this bill if the Stevens amendment is not taken out of it. I ask 
unanimous consent to have that printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page S4063]]




                                The Secretary of the Interior,

                                   Washington, DC, April 30, 1997.
     Hon. Ted Stevens,
     Chairman, Committee on Appropriations,
     U.S. Senate, Washington, DC.
       Dear Senator Stevens: I am writing to express strong 
     opposition to the provision concerning Revised Statute 2477 
     that I am informed you intend to include in the pending 
     Emergency Supplemental and to a proposed amendment by Senator 
     Craig concerning application of the Endangered Species Act to 
     the operation, maintenance and repair of flood control 
     structures.
       In light of my strong concerns, if either of these 
     proposals or similar extraneous and controversial endangered 
     species amendments are included in the emergency Supplemental 
     when it is presented to the President for his signature, I 
     would be compelled to recommend that he veto the legislation.
       R.S. 2477. Two decades after the repeal of R.S. 2477, the 
     profusion of unresolved pre-1976 claims presents a planning 
     and management problem for federal land managers and other 
     landowners, and uncertainty for potential right-of-way 
     holders and users of public land. My efforts over the past 
     several years have been directed to establishing a clear, 
     certain, and fair process to bring these claims to 
     conclusion.
       I am informed that your provision would prohibit the 
     expenditure of funds in 1997 and thereafter to ``promulgate 
     or implement any rule, regulation, policy, statement or 
     directive issued after October 1, 1993 regarding the 
     recognition, validity, or management of any right of way 
     established pursuant to R.S. 2477.'' I am also informed that 
     proposed report language states that it is the intention of 
     the provision to ``restore the prior practice of deferring to 
     the law of the State in which a right of way is located for 
     purposes of determining the recognition, validity, and 
     management of such right of way.''
       The public will be poorly served by Congressional action 
     that has the effect of rescinding the Department's current 
     orderly manner of proceeding to deal with right-of-way claims 
     and, at the same time, prevents the Department from 
     issuing final rules governing claims under R.S. 2477. The 
     proposed language does not clarify the process for 
     handling right-of-way claims under R.S. 2477, but would 
     add to the uncertainty and confusion of that process.
       If the proposed provision requires the Department and the 
     courts to defer to state law, as the proposed report says it 
     does, the consequences could be devastating. Such a 
     requirement could effectively render the Federal government 
     powerless to prevent the conversion of footpaths, dog sled 
     trails, jeep tracks, ice roads, and other primitive 
     transportation routes into paved highways. The proposed 
     amendment could even result in a decision validating a right-
     of-way that runs through the secure area of a military 
     installation. Under your proposal, the military could be 
     prevented from regulating traffic on these alleged rights-of-
     way.
       That result would be fundamentally inconsistent with modern 
     statutes that provide access to and across Federal lands, and 
     would fatally undermine the principles these laws embody, 
     such as public land retention, comprehensive land planning, 
     public involvement in land use decisions, compliance with 
     environmental laws, and mitigation of negative environmental 
     impacts.
       The practical implications of the blanket adoption of state 
     law can be seen, for instance, in Alaska, where state law 
     first adopted in 1923 and later upheld in the state Supreme 
     Court provides for a claim of highway easement either 66 or 
     100 feet wide, across each section line in the entire state. 
     These sections cross the state on a grid one mile apart, both 
     horizontally and vertically. Thus state law purports to 
     create over 984,000 miles--almost one million miles--of 
     ``highways'' in the State of Alaska, roughly 300,000 miles of 
     which cross National Wildlife Refuges, 160,000 miles of which 
     cross National Parks, and 137,500 miles of which cross 
     conveyed lands of Native Alaskans.
       In some states, state law may not differentiate between 
     Federal and private lands for purposes of right-of-way 
     claims. Deferring to state law could result in R.S. 2477 
     rights-of-way being granted over private property that has 
     long since passed out of Federal ownership.
       Endangered Species Act. Senator Craig's proposed amendment 
     would provide a broad exemption from the provisions of 
     sections 7 and 9 of the Endangered Species Act for operation, 
     maintenance, repair and reconstruction of any Federal or non-
     Federal flood control project, facility or structure.
       The Department agrees with the need to minimize flood 
     damages and to protect residents in flood prone areas. In 
     January 1997, the Fish and Wildlife Service implemented the 
     emergency provisions of the Endangered Species Act for the 
     California counties that were declared Federal disaster areas 
     to facilitate rapid and effective response to damaged flood 
     management systems that minimize the risks to life and 
     property. On February 19, 1997, the Director of the Service 
     issued a policy statement further clarifying and articulating 
     our emergency policy under the ESA, which allows disaster 
     response measures to be implemented immediately without 
     prior consultation with the Service under section 7 of the 
     ESA.
       The proposed amendment goes far beyond the FWS policy and 
     the current provision of the ESA. It would waive compliance 
     with the Act in a broad range of non-emergency situations. 
     Routine operation and maintenance would be exempt if their 
     purpose was compliance with any current Federal, state or 
     local public health or safety requirement, even if there is 
     no emergency in effect or reasonably anticipated.
       Under the amendment, for example, virtually all Federal and 
     non-Federal projects in the Columbia River basin could be 
     exempt from ESA requirements. If these projects were no 
     longer required to protect endangered fish stocks, such as 
     Pacific salmon, other public agencies and the private sector 
     would have to significantly increase their conservation 
     efforts to compensate for the expected loss of important 
     fishery resources that would occur. This could have severe, 
     long-term economic impacts for the logging, mining, 
     irrigation, navigation, water supply, recreation, and 
     commercial fishing industries in the region.
       The Department strongly supports the proper operation and 
     maintenance of flood control facilities to avoid threats to 
     human life and property. We also strongly support the 
     protection and conservation of important natural resources. 
     The proposed amendment assumes that these two goals are 
     inconsistent and mutually exclusive. I believe they are not. 
     As the February 19 policy statement demonstrates, it is 
     possible to reconcile both goals, protecting human life and 
     property without abandoning the Nation's commitment to 
     protection of our natural heritage.
           Sincerely,
                                                    Bruce Babbitt.

  Mr. BUMPERS. Now, Mr. President, I hate to read to my distinguished 
colleague, but it will be helpful to clarify the record about this 
``terrible'' Babbitt policy. He did not think it was a good idea to 
allow the States to come in here and claim a right-of-way simply 
because somebody moved a few rocks out of the way no matter where it 
was located.
  Mr. STEVENS. I want to talk to you about that, in particular, if the 
Senator will yield.
  Mr. BUMPERS. I yield.
  Mr. STEVENS. That is initiation of a highway. You move a few rocks, 
you cut down the right-of-way, you eliminate--it does not say 
``weed''--the brush, and you start to build a highway. The question 
before Hodel at the time was, what is the initiation of highway, not 
what is a right-of-way?
  I say to my friend that highways today came from wagon trails. In my 
State, some of our highways came from dog sled trails, from the trails 
that were cut by people who did use horses in those days, or by people 
who use snowshoes when they were delivering mail on their backs with 
packs. Some of them were developed in the 1920's, 1930's, 1940's, 
1950's, 1960's, until 1976. They are today, but we have not had the 
money or capability to extend the highways because there are other 
problems of getting to those areas before we turn them into highways. 
They are not different from the roads that lead to Arkansas or, as I 
remember my youth, the slow train through Arkansas. That is a highway 
now. Maybe they leave Arkansas now rather than go in as they did in 
those days, but what I am telling you is we are asking for nothing more 
than what was the process of modernization throughout the West. It was 
by foot, by wagon, by horse trail. Then when there were vehicles, there 
were vehicles.
  But in our State, we have areas where vehicles have not yet been on 
the ground. A substantial part of our State cannot be reached by road. 
You know that. It can only be reached by air. We still have the process 
of extending those roads out into those areas so we can have surface 
transportation.
  You cannot turn R.S. 2477 into a right-of-way over which a vehicle 
has gone and protect our rights.
  Mr. BUMPERS. Senator, let me answer that by saying the fact that 
Alaska was, until recently, a frontier State, as was all of the West 
not too many years ago. To suggest that simply because the West was 
settled by pioneers who made wagon tracks or where they had footpaths 
where they tried to get to the West, to suggest that all of those 
routes across Federal lands--let me finish, sir.
  Mr. STEVENS. That was Federal lands.
  Mr. BUMPERS. That is the very point I am getting ready to make.
  Simply because somebody drove a covered wagon or group of covered 
wagons over land heading west, or it was a footpath used by people who 
walked on it, to suggest those paths now constitute a highway, simply 
by mowing weeds on it, by moving a few rocks and showing that you did 
some construction, how foolish can we be?
  Mr. STEVENS. That is the very basis of the western highway system 
today,

[[Page S4064]]

those rights-of-way that went across Federal lands. The whole West was 
Federal land.
  Mr. BUMPERS. And anything you built prior to the repeal of this law 
in 1976 is yours. Nobody is trying to take that away from you.
  Mr. STEVENS. In 1976, Alaska was 18 years old. We were just trying to 
get in the Highway Act.
  Mr. BUMPERS. I want to make two points, one to the junior Senator 
from Alaska. When he talks about how Bruce Babbitt did all of this 
behind closed doors last year--with no consultation--last year, the 
Senator will recall that we tried our very best through a public 
process to come up with a definition of these roads. As a matter of 
fact, the Secretary went through the process of trying to develop a 
rule as to what a road was, issued it for public comment, got over 
3,000 comments, and the Senators from Alaska went ballistic and said, 
``No, we do not want any part of that. We are not about to let you.'' 
You remember when we blocked him from proceeding further with that.

  Then you come here today saying this should have been done in a more 
sensible way, when it was the Senators from that side of the aisle who 
stopped him from doing it.
  Mr. STEVENS. Will the Senator yield?
  Mr. BUMPERS. Yes, I yield.
  Mr. STEVENS. There is no sensible way for an edict to come from 
Washington denying the right of a State under Federal law. I am not 
seeking a more sensible way. I am telling him No! No! No! You cannot do 
this. If we cannot get that between us, then you do not understand me. 
You cannot do this. This is a right of our State.
  Mr. BUMPERS. The Senator has no right to complain. He says to the 
Secretary, ``No, no, no.'' He should not come to this floor squawking, 
because he stopped the Secretary from trying to come up with some kind 
of a sensible rule.
  So, in 1997, and I have been trying to get to this for about 15 
minutes, here is the policy that the Secretary of the Interior issued. 
It is a good, sane, sensible policy. If the Stevens amendment on this 
bill stays in, he torpedoes this policy of 1997, and we go back to the 
abomination called the Hodel rule.
  Now, you choose. If you think the Hodel rule was right--as I say, by 
moving a few stones, mowing a little grass, anything to try to make it 
look like you have been doing a little construction, or you listen to 
the policy developed by Secretary Babbitt, and here is the first item:

       An entity wishing the Secretary or any agencies of the 
     Department of Interior to make a determination as to whether 
     R.S. 2477 right-of-way exists shall file a written request 
     with the Interior agency having jurisdiction over the lands 
     underlying the asserted right-of-way, along with an 
     explanation of why there is a compelling and immediate need 
     for such a determination.

  Surely, nobody objects to that.

       The request should be accompanied by documents and maps 
     that the entity wishes the agency to consider in making its 
     recommendations to the Secretary. If, based on the 
     information provided, the agency does not believe a 
     compelling and immediate need for the determination exists, 
     it should, without further examination, recommend the 
     Secretary defer processing until final rules are effective.

  That is the policy, ``until final rules are effective,'' and there is 
absolutely nothing wrong with that.
  No. 2, ``The agencies shall consult the public land records, 
maintained by BLM to determine the status of the lands over which the 
claimed right-of-way passes. If such lands were withdrawn''--that means 
the Federal Government took the lands out and made a wilderness area of 
them, or a national park or some other Federal purpose; that is what is 
called reserving the lands--``if they determine that these lands have 
been withdrawn by the Federal Government or otherwise made unavailable 
pursuant to R.S. 2477 at the time the highway giving rise to the claim 
was allegedly constructed and remained unavailable through October 21, 
1976, the agencies will recommend the Secretary deny the claim.''
  Now, all that says is, if this was not a claim for an existing right-
of-way prior to the time we repealed R.S. 2477, it should be denied. 
Nobody would argue with that. That is the reason we repealed R.S. 2477, 
was to stop the nonsense.
  No. 3, ``If the lands were not withdrawn, reserved or otherwise 
available''--now, that means that the Federal Government had not taken 
the land and used it for some other purpose such as a national park, 
``the agency will examine all able documents and maps and perform an 
on-site examination to determine whether construction on the alleged 
right-of-way had occurred prior to the repeal of R.S. 2477 on October 
21, 1976.''
  Again, the agency will deny the claim if it had not been a right-of-
way prior to the repeal of 2477.
  No. 4, Highway: ``The agency shall evaluate whether the alleged 
right-of-way constitutes a highway.''
  Here is the key to this whole thing. ``A highway is a thoroughfare 
used prior to October 21, 1976.''
  That is the date of the repeal. An alleged right-of-way constitutes a 
highway if it was a thoroughfare prior to the repeal of 2477.
  If the agency determines that the alleged right-of-way does not 
constitute a highway, the agency will deny the claim. Why shouldn't 
they? That is the reason we repealed it. We don't want any claims 
coming in on highways that were not in existence at the time we 
repealed the law.
  Mr. MURKOWSKI. Will my friend yield?
  Mr. BUMPERS. No. I will finish reading, and then I will yield the 
floor.
  The role of State law: He says, ``In making its recommendations, the 
agency shall apply State law in effect from 1976 to the extent that it 
is consistent with Federal law.''
  Mr. MURKOWSKI. It is Federal law now.
  Mr. BUMPERS. Let me finish, please.
  All he is saying is that in this ruling the State law will apply as 
long as it is consistent with Federal law. To do anything else, to 
issue a rule of any other kind, gives the States carte blanche over all 
unreserved Federal land. They will decide what a right-of-way is. They 
will decide which ones they want to build roads on.
  Finally, ``The agency will make recommendations on the above-
described issues to the Secretary, and the Secretary will approve or 
disapprove of those recommendations.''
  Mr. STEVENS. Will the Senator yield just for one second and answer 
one question?
  Mr. BUMPERS. All right.
  Mr. STEVENS. What the Secretary is doing now concerns taking action 
under the Federal Land Policy and Management Act, and section 701(h) of 
the law is specific ``All actions by the Secretary concerned * * * 
shall be subject to valid existing rights.'' By what power does he 
redefine now what was a valid existing right in 1976? He wasn't 
Secretary in 1976. What happens to the women who are out there in those 
small villages and cities today? They have to be flown into town to go 
to the hospital. It is going to take a few miles to get the roads to 
them. And we are going to get the roads to them, as long as we have the 
right to build the roads. We have the ability to deliver mail by road 
rather than by air. The Senator from Arkansas and others have been 
telling us, ``Stop that subsidy for Alaska.'' And for their mail, it 
costs $100 million more a year to deliver mail in Alaska because it all 
goes by air rather than similar places in the southern 48 because there 
it goes by road.
  By what right does this Secretary of the Interior determine what was 
a valid existing right in 1976?
  Mr. BUMPERS. First, the first thing the Secretary has to do before he 
can approve an application is to determine whether it was a valid 
existing right before 1976.
  Mr. STEVENS. No, he doesn't. The law is the law. There were laws in 
place in 1976 which defined those rights. He is now going to try to 
redefine the law to determine whether they were existing rights in 
1976.
  Mr. BUMPERS. Let me ask this question. What right does Don Hodel have 
to set out what an existing right was in 1988?
  Mr. STEVENS. I am glad the Senator asked that question of me.
  If you want to look at what happened, Secretary Hodel approved in 
1988 a series of proposals that came to him from the Bureau of Land 
Management, the Park Service, and the Fish and Wildlife Service within 
his Department. He did not write that. He approved the work of a series 
of bureaus in his Department. It was not what this

[[Page S4065]]

Secretary is doing. This Secretary is coming along as the Secretary and 
issuing an edict to change all of that. This, in 1988, was the work of 
long-term public servants who had great experience in managing.

  As a matter of fact, if you want to look at the 1993 report to 
Congress on R.S. 2477 by the Department of the Interior--I have it 
right here--you will see that there was consultation with the 
Governors, there was consultation with the State directors in Utah and 
Alaska, the areas where there was a substantial amount of R.S. 2477 
claims.
  One of the things that I might add to this, my friend, is our 
Governor, who is a member of the party of the Senator from Arkansas, 
sent word to the current Secretary of the Interior that he was 
disturbed because he was not consulted before this was done. In the 
prior time, when the tables were turned and there was a Democratic 
Governor in the State of Alaska, Secretary Hodel did consult with him. 
He consulted with him. They had memos from the State. They had memos 
from Utah. They had memos from the BLM, Park Service, Fish and Wildlife 
Service, from throughout the West. That is what Hodel approved.
  Mr. MURKOWSKI. Will the Senator yield on this subject?
  Mr. STEVENS. Hodel approved a series of papers that were presented by 
those agencies, and said--his statement is a one-page statement, which 
the Senator has been reading. So the words that the Senator was reading 
were not Hodel's words. The Secretary's approval is on a memorandum 
from the Assistant Secretary for Fish and Wildlife, Assistant Secretary 
for Minerals and Management, the BLM, and it is an approval of the 
policy statement concerning R.S. 2477. Hodel did not develop that 
policy. The Department developed it. All the agencies developed it in 
consultation with the States involved, and with the State offices of 
the various portions of this Department.
  So the Senator is overlooking that.
  Mr. BUMPERS. The Senator from Alaska is saying that Donald Hodel, who 
was Secretary of the Interior, had nothing to do with the development 
of policy--that the Department did it. Now does the Senator separate 
the Secretary of the Interior from the Department of the Interior?
  Mr. STEVENS. All Hodel had to do was sign his name to one page. He 
did not do it. It was the Department that developed this policy after 
consultation with a series of States and a series of agencies.
  Mr. MURKOWSKI. Will the Senator yield?
  Mr. BUMPERS. Everybody knows exactly why Don Hodel came up with that 
policy--because the Western Senators threatened him probably with death 
if he didn't. Everybody knows that policy was crazy. It was done for 
political purposes. We all know that. I am not going to debate that.
  Mr. STEVENS. That sounds like something people accuse me of. I have 
been threatened with death.
  Mr. BUMPERS. I have never accused the Senator of being political.
  Did the Senator want to ask a question?
  Mr. MURKOWSKI. Mr. President, I ask if the Senator from Arkansas is 
aware of the circumstances under which the Secretary of the Interior 
initiated his arbitrary decision recognizing what the law says. I have 
a chart here. I will ask my friend from Arkansas relative to what R.S. 
2477 says. The statute's authority grants right-of-way for the 
construction of highways over public lands not reserved for public use. 
We have defined, if you will, what it means as far as a highway is 
concerned.
  Mr. BUMPERS. Let me interrupt.
  Mr. MURKOWSKI. It is defined specifically under the law as 
pedestrian, or a pack animal trail may qualify. The Department's own 
regulations in 1938, state when a grant becomes self-effective. The 
grant refers to the section becoming effective upon the construction or 
establishment of a highway in accordance with the State law. That is 
the law of the land, the State law over public lands not reserved for 
public use. ``No application should be filed under R.S. 2477, as no 
action on the part of the Federal Government is necessary.'' That is 
the law.
  What Secretary Babbitt is doing is saying you have to file. He is 
changing and reinterpreting the law 20 years after it was repealed.
  I ask the Senator if that is not a correct interpretation of what 
this Secretary is doing. He is changing the law. He is saying you must 
file. The law says you don't have to file.
  Is not that correct? I ask my friend from Arkansas. Is he not 
redefining the law?
  Mr. BUMPERS. We repealed that in 1976. That law was repealed. We are 
not debating that.
  Mr. MURKOWSKI. That is what prevailing regulations stated during the 
entire time that the act was in effect. What this Secretary has done, 
unlike Hodel, who met with all the other Governors--let me add for the 
Record at this time the letter from our Governor dated January 29 to 
the Secretary.

       Dear Mr. Secretary: I wish to express my dismay about your 
     issuance of a revised policy on R.S. 2477 rights-of-way 
     determinations without consultation with the State of Alaska 
     or, to my knowledge, other Western States. The department not 
     only failed to seek comment or input from Alaska, it did not 
     even pay the courtesy of informing the state that it planned 
     such a revision. Further, the department did not even notify 
     the state when it released the revised policy publicly.

  Don Hodel didn't do that. Don Hodel met, my friend, the senior 
Senator said, with a Democratic Governor of my State and consulted on 
the policy. He did it publicly in an open process. It was the input of 
the Western States that brought the withdrawn definition and policy 
together. This Secretary changed that definition and simply suggested 
that it be the passage of vehicle traffic, and that is contrary to the 
law.
  Mr. President, I ask unanimous consent the letter from Governor 
Knowles be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  State of Alaska,


                                       Office of the Governor,

                                     Juneau, AK, January 29, 1997.
     Hon. Bruce Babbitt,
     Secretary of the Interior, U.S. Department of the Interior, 
         Washington, DC.
       Dear Mr. Secretary: I write to express my dismay about your 
     issuance of revised policy of RS 2477 rights-of-way 
     determinations without consultation with the State of Alaska 
     or, to my knowledge, other Western states. The department not 
     only failed to seek comment or input from Alaska, it did not 
     even pay the courtesy of informing the state that it planned 
     such a revision. Further, the department did not even notify 
     the state when it released the revised policy publicly.
       This initiative is troubling not only because it violates 
     the spirit of the Congressional prohibition on further 
     interior development of RS 2477 policy contained in last 
     year's appropriations bill, but because it expressly revokes 
     the department's 1998 policy that was negotiated over several 
     months with Alaska and other Western states. The new policy 
     undermines several provisions that were carefully crafted to 
     the Alaska situation, for instance the definition of 
     ``highway.''
       Mr. Secretary, I wish to maintain a good working 
     relationship with the Department of the Interior, but this 
     requires a bilateral effort. I will discuss this RS 2477 
     issue with you at our appointment next Tuesday.
           Sincerely,
                                                     Tony Knowles,
                                                         Governor.

  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I don't think many minds are being 
changed with this debate. I don't see any reason to pursue it because 
we have a 180-degree difference of opinion on it. I personally think 
that the law is fairly clear on it. The policy of Donald Hodel is 
clear. He didn't consult with the public. He consulted with the two 
Senators from Alaska and the Governor of Alaska, and perhaps some other 
Senators from the West, which is understandable. The only reason I know 
that is not because I know it for a fact. It is just that I know he 
issued a policy that was very pleasing to those Senators.
  Mr. STEVENS. Will the Senator yield right there?
  Mr. BUMPERS. Yes.
  Mr. STEVENS. Does the Senator recall who was in the majority in the 
Congress at that time?
  Mr. BUMPERS. I know who the executive branch was. I know who the 
President of the United States was.
  Mr. STEVENS. Hodel did not consult with these Senators because the 
management of the Congress was under the party of the Senator from 
Arkansas at

[[Page S4066]]

that time. If there was any complaint about what Hodel did, that should 
be in the Record. At the time, the Congress did not object to what 
Hodel did because it was the process that came through consultation 
with Western States, Western Governors, with the agency's State offices 
throughout the West and was sent up to him by the Assistant Secretaries 
for Fish and Wildlife and the Bureau of Land Management up to the 
Secretary for approval. That is not what is happening now.
  Mr. BUMPERS. I have to make this point one more time. The Senator 
talks about Don Hodel consulting with everybody. Bruce Babbitt had 
3,000 comments from the public. Why is it that Don Hodel with a few 
Republican Senators and Congressmen around him developed a policy--why 
was that so wonderful with a few people sitting behind a closed door to 
decide the policy, and Bruce Babbitt gets 3,000 comments? And what 
happens? The first thing that happens is an amendment on an emergency 
supplemental, which has absolutely no business being there, to stop him 
from implementing a ruling. Three thousand people have commented on it.
  It just depends on whose ox is being gored. We all know that.
  Mr. STEVENS. Will the Senator yield for just a second? This has 
nothing to do with whose ox is being gored. I am surprised there are 
only 3,000. After all, all they have to do is press a button, and say, 
``Send out another 3 million direct mail pieces to all of these people 
that are involved in this extreme environmental movement in this 
country.'' And I would be surprised if it was only 3,000. But those 
people aren't the Governors of the Western States. They aren't the 
Senators that represent Western States. And they are not the people 
within the BLM and others who are professionals in this field. This is 
coming at us now as edict on high. This is supremacy of the Federal 
Government. I have to tell you. I have dedicated my life against that. 
I think the Senator should remember that. We have been out here before 
saying you can't make laws from the executive branch. It must come 
through Congress.
  Mr. BUMPERS. Mr. President, let me just say this to the Senator from 
Alaska. It isn't often that I say this. But when I read the Senator's 
comment on this emergency supplemental and I realize what the effect of 
it would be, for once in my life thank God for the supremacy of the 
Federal Government.
  I yield the floor.
  Mr. MURKOWSKI addressed the Chair.
  Mr. STEVENS. Will the Senator yield for just a second?
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. MURKOWSKI addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. MURKOWSKI. I believe the senior Senator from Alaska would like to 
make a statement.
  Mr. President, while my senior Senator addresses the Senate floor 
schedule, let me remind the Senator from Arkansas once again----
  Mr. STEVENS. Will the Senator yield?
  Mr. MURKOWSKI. I suggest the absence of a quorum.
  Mr. STEVENS. No. No.
  Mr. President, I ask unanimous consent that at 2:10 today there be 5 
minutes equally divided in the usual form prior to a vote on or in 
relation to the D'Amato amendment No. 145, to be immediately followed 
by a 4-minute time period equally divided in the usual form prior to a 
vote on or in relation to the Bumpers amendment No. 64, and that 
further, prior to the votes, no other amendment be in order to these 
amendments or to the language proposed to be stricken.
  The PRESIDING OFFICER. Is there objection?
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. Is there objection?
  Mr. MURKOWSKI addressed the Chair.
  Mr. BUMPERS. I am not sure I understood that. We are going to have 5 
minutes of debate on D'Amato?
  Mr. STEVENS. There is 5 minutes equally divided on D'Amato. That was 
the request of your side, I might say to the Senator, and then a vote 
on the D'Amato amendment. And then there will be, after that vote, 4 
minutes equally divided on the Senator's amendment to strike, and there 
would be a vote on the Senator's amendment. Neither will be subject to 
amendment after this agreement.
  Mr. BUMPERS. And this will all begin when? The first vote will take 
place at----
  Mr. STEVENS. At 2:10 p.m.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. STEVENS. Mr. President, if I get the agreement, I will ask later 
that the second vote will be a 10-minute vote, but I cannot do it yet. 
I thank the Senator.
  Mr. MURKOWSKI addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. MURKOWSKI. Mr. President, I think we have gone on perhaps long 
enough on this, but there are a few things that need to be said 
relative to the debate that has just occurred. And while my friend from 
Arkansas indicated that we had repealed FLPMA, with regard to FLPMA, I 
think it is important the record reflect that under R.S. 2477 we 
established and have always maintained the basis for determining the 
right of public access across public lands.
  So that has been maintained in the law. I think it is further 
noteworthy to recognize that the Hodel policy recognized the historic 
use of a route. If it was historically a footpath, it was recognized as 
a footpath. If it was a wagon trail, then it was recognized as a wagon 
trail. If it was a wagon trail that was used in general commerce over 
an extended period of time, then it justified obviously inclusion under 
the concept of R.S. 2477.
  In summation, Mr. President, what is happening here I think is a 
result of what happened as late as last year in Utah where we had a 
perfect example of a small group within the administration taking it 
upon themselves to decide for all Americans how our public lands should 
be used. As the debate has indicated, those of us from Alaska are 
particularly sensitive, as we can speak from long personal experience 
on this topic. All of the experience teaches us that decisions 
affecting the use and classification of our public lands must be left 
in the hands of a public process, not one Secretary of the Interior who 
decides on his own as a consequence of actions within the Department, 
without a public policy, that he is going to change the procedure 
unilaterally and redefine what constitutes an adequate method of 
transportation across public lands, and that is what this Secretary 
did, unlike Secretary Hodel.
  Actions from this administration put the public's right to 
participate in the decisionmaking process, as far as I am concerned, on 
the endangered species list.
  Mr. President, allowing this administration, and that is what the 
proposal from the Secretary of the Interior does, to rewrite public 
land law use through the enactment of regulations is much the same as 
putting the fox in charge of the chicken coup.
  The reason we in Alaska are a little reflective upon this is the 
history of our State. In 1966, the Secretary of the Interior--we 
entered into statehood in 1959--Secretary Udall decided on his own to 
intercede in Alaska and simply stopped processing land selections 
authorized under the Statehood Act. We entered into the State of the 
Union with a commitment of 104 million acres. The land was being 
transferred to the State. He stopped the process. He did not ask 
anyone, just did it. In January 1969, he withdrew all public lands in 
Alaska from all forms of appropriation except mining claims--no public 
input, no congressional action. This was the so-called land freeze, 
superfreeze. A few other names which would be inappropriate in this 
Senate Chamber come to mind.
  It happened again in 1978, deja vu, this time with Jimmy Carter, who 
stepped in and decided on his own what was best for the management of 
our public lands, and using the 1906 Antiquities Act he created 17 
national monuments. These monuments encompassed slightly more than 56 
million acres of land, an area the size of the State of South Carolina. 
It did not stop there. This was followed in short order by Secretary of 
the Interior Cecil Andrus who withdrew an additional 50 million acres. 
In total that arbitrary action by the Secretary of the Interior 
withdrew

[[Page S4067]]

105 million acres. That is more than the entire State of California. 
All this land was withdrawn from multiple use without any input from 
the people of Alaska, any input from the public, any input from Members 
of Congress.
  I ask you, can you understand why we are sensitive? With all these 
actions held over Alaska's head, we were forced to cut the best deal we 
could. Twenty years later, the people of our State are still struggling 
to cope with the weight of these decisions. When they say you forget 
history, why, I say you are doomed by it, doomed to repeat it if you do 
not remember. So as long as we stand in this Chamber people will not be 
allowed to forget what happened when the public and the Congress are 
excluded from the public land management decisions.
  When my friend from Arkansas says that this does not belong in this 
legislation, that it does not belong because it is not an emergency, he 
is absolutely wrong. It is an emergency. This is an action arbitrarily 
proposed by the Secretary of the Interior now. It is contrary to law, 
and it has to be stopped.
  Mr. President, again, the fact is if R.S. 2477 was not in existence 
on October 21, 1976, it will not and it cannot by definition be created 
now. We have no problem with that. We want that to be the case. What we 
do not want is the Secretary to arbitrarily suddenly come to the 
conclusion that if vehicle travel has not proceeded over these routes 
prior to October 21, 1976, there is no justification for inclusion.
  So in closing, Mr. President, I wish that we did not have to address 
this issue at this time, but it is an emergency for the Western States. 
It belongs on the first legislative vehicle that we can get the 
attention of the Congress relative to taking action. I thought we put 
this to an end in a bipartisan manner last year when we enacted a 
permanent moratorium on future actions by the Department, but that was 
not good enough for the Secretary. So behind closed doors this 
Secretary has sought to disregard the spirit and the intent of our 
previous action.
  We have no other alternative, Mr. President, but to pursue this in a 
manner to continue to have available the viability of historical 
transportation routes that were in existence across our State, so that 
we can bring our State together, recognizing the huge amount of Federal 
withdrawal that is evidenced on this chart by the colored areas that 
represent all Federal withdrawals as compared to the white areas which 
simply address the State holdings. So one can readily see the necessity 
of having the option to establish, if you will, access routes across 
traditional trails that existed that were dog sled routes, or 
footpaths, that were used for commerce prior to that 1976 date. We 
simply have to have the assurance that that will remain as the law of 
the land and we can continue to allow, after our short 39 years of 
existence as a State, the development of our State, we can be bound 
together. That is why it is an emergency and that is why I commend my 
good friend and senior Senator for putting this in this legislation 
because there is no question it is an emergency of the highest nature 
in the State of Alaska and certainly affects the other Western States 
as well as we have seen the withdrawal of 1.6 million acres under the 
Antiquities Act in Utah by this administration.

  I thank the Chair and I yield the floor.
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska, Senator.
  Mr. STEVENS. I want to remind the Senate now, and I will do so later 
just prior to the vote, in this year's Interior appropriations bill, 
signed by the President last fall, after serious negotiation with the 
administration, conducted by the previous chairman of this 
Appropriations Committee, at my request this section was put in that 
bill, section 108:

       No final rule or regulation of any agency of the Federal 
     Government pertaining to the recognition, management or 
     validity of a right-of-way, pursuant to Revised Statute 2477, 
     43 U.S. Code 932, shall take effect unless expressly 
     authorized by an act of Congress subsequent to the date of 
     enactment of this act.

  Now, that was the compromise last year as we began this fiscal year. 
We believe it is an emergency when we return to Washington to find that 
the Secretary of the Interior has issued a policy, a statement, edict, 
fiat, whatever you want to call it, but he has in effect changed the 
law, in his opinion, purported to change the law in a way that he 
believes is not covered by that very strong statement:

       No final rule or regulation of any agency of the Federal 
     Government pertaining to the recognition, management or 
     validity of a right-of-way, pursuant to Revised Statute 2477. 
     . . shall take effect unless expressly authorized by an act 
     of Congress subsequent to the date of enactment of this act.

  That is this Congress. We have very clearly said, and the President 
of the United States agreed, that any change regarding the validity of 
rights-of-way shall be authorized by an act of Congress, and yet if we 
do not take this action that is in this bill that policy statement will 
guide all members of the Interior Department with regard to approval of 
the applications of Western States for rights-of-way under the law, a 
law that was agreed to in 1976 and expressly reserved all existing 
rights-of-way.
  I think it is a very clear issue, notwithstanding all of the flak 
that is out there in these direct mail pieces that are stimulating 
every newspaper from here to Washington State. It is just too bad that 
editors have not learned how to read because if they would read what 
the law is, I do not see how they can come to the conclusions that they 
do in some of the editorials I have read today. I hope the Members of 
the Senate are not swayed by those editorials because they certainly 
are not based upon the law or the facts of the situation.
  Mr. President, I will suggest the absence of a quorum awaiting my 
friend. We do have some matters that we can take care of. I might state 
for the information of the Senate that we have an indication from the 
Parliamentarian that only 33 of the 109 amendments that were filed are 
proper under cloture. Members should consult, if they wish to do so, 
the staff of either side to find out the situation with regard to their 
amendment. Senator Byrd and I have agreed that if we can we would like 
to cooperate with Members on matters that are true emergencies, 
particularly for those people who are from the disaster States, and 
there are 33 of those, Mr. President. But we are compelled to rely upon 
the actions of the Parliamentarian under the rule unless we can find 
some way to accommodate the changes that would be necessary to validate 
the amendments involved. So I urge Members of the Senate to determine 
whether the amendments they have filed prior to cloture are now valid 
after cloture.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceed to call the roll.
  Mr. STEVENS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________