[Congressional Record Volume 145, Number 115 (Wednesday, September 8, 1999)]
[Senate]
[Pages S10551-S10584]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT,
2000--Resumed
The PRESIDING OFFICER. The clerk will report the pending business.
The legislative assistant read as follows:
A bill (H.R. 2466) making appropriations for the Department
of the Interior and related agencies for the fiscal year
ending September 30, 2000, and for other purposes.
Pending:
Gorton amendment No. 1359, of a technical nature.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, debate on the Interior appropriations bill
took place on two separate occasions before the August recess. Two
significant amendments have already been voted upon. We now have a
unanimous consent agreement for listing all of the amendments that are
in order, and they are 66 in number.
A substantial share, perhaps 20 or more of those amendments, will
either be accepted or will be a part of one omnibus managers' amendment
at the end of this debate. I suspect several others will not actually
be brought up for discussion in the Senate, but it seems apparent to
this Senator, as manager of the bill, that as many as a dozen may
require some amount of debate and very likely a vote.
Up to four of those amendments are amendments that were included as a
part of the bill as it was reported by the Subcommittee on Interior
appropriations and by the full Appropriations Committee, which fell
under the revised rule XVI. One of those is an amendment originally
drafted by the Senator from Missouri. He will bring it up at this
point.
I have asked the Democratic manager, Senator Byrd, to get me a list
of amendments that Members of his party wish to bring up. He is in the
process of doing that at the moment. But this is an announcement that
we are now open and ready for business. It may be that we will, from
time to time, set amendments aside so we can hear debate on others. The
majority leader may decide to stack votes on some of these amendments.
But this is a very short week. We are starting this at 4 o'clock on
Wednesday afternoon. We have all day and into the evening tomorrow for
these debates. The majority leader has announced, due to the Jewish
holiday, that there will be no votes on Friday. I hope we will have
made substantial progress on the bill by the end of tomorrow's session
of the Senate. That is possible, of course, only if Members on both
sides--both Republicans and Democrats--are willing to bring their
amendments to the floor.
The one other amendment I have discussed seriously at this point is
one by the Senator from Wyoming, Mr. Enzi, and the Senator from
Florida, Mr. Graham, on gambling. That amendment is ready to be
accepted. Now I see two Members on the floor. If the Senator from
Florida--who was told he could go first--would like to bring his
amendment up now and submit the rest of the various statements on it, I
understand the amendment will be accepted in relatively short order. Is
my understanding correct?
Mr. GRAHAM. That is my understanding, and we are prepared to proceed
with our amendment.
Mr. GORTON. Then I yield the floor and suggest the Senator from
Florida seek to be recognized.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER (Mr. Sessions). The Senator from Florida is
recognized.
Privilege Of The Floor
Mr. GRAHAM. Mr. President, I ask unanimous consent that Kasey
Gillette of our staff have floor privileges for the duration of the
consideration of the Interior appropriations bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the pending
amendment be temporarily laid aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1577
(Purpose: To prohibit the Secretary of the Interior from implementing
class III gaming procedures without State approval)
Mr. GRAHAM. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Florida [Mr. Graham], for himself, Mr.
Enzi, Mr. Bryan, Mr. Reid, Mr. Voinovich, Mr. Grams, Mr.
Lugar, Mr. Sessions, and Mr. Bayh, proposes an amendment
numbered 1577.
At the appropriate place, insert the following:
SEC. . PROHIBITION ON CLASS III GAMING PROCEDURES.
No funds made available under this Act may be expended to
implement the final rule published on April 12, 1999, at 64
Fed. Reg. 17535.
Mr. GRAHAM. Mr. President, this amendment, which has been cosponsored
by Senators Enzi, Bryan, Reid, Voinovich, Grams of Minnesota, Lugar,
Sessions, and Bayh, has been before the Senate on several previous
occasions. It essentially goes to the issue of what will be the process
to determine whether on Indian properties there shall be allowed class
III gambling. Class III gambling is the type of gambling that occurs in
Las Vegas and Atlantic City. It is what we would characterize as casino
gambling. Currently, for that gambling to occur, there has to be a
compact entered into between the representatives of the Indian tribe
and the Governor of the State in which the proposed casino would be
located. This is all part of the Indian Gaming Act passed by the
Congress in the past.
The Secretary of the Interior, earlier this year, on April 12, issued
a regulation that essentially said if he determined the States were not
negotiating
[[Page S10552]]
on these compacts in good faith, then he could remove that power from
the States, and the Secretary of the Interior would decide whether
there should be class III gambling under the aegis of Indian tribes.
I personally think that is a very bad idea. It disrupts the basic
principle of federalism, the responsibility which this Congress has
placed with the States and the tribes to reach an agreement.
In my own State of Florida, we have a prohibition in our constitution
against casino gambling. Three times since 1978 there have been
attempts to amend the constitution and change that provision, and each
time they have been overwhelmingly defeated. This would have the effect
of overturning three constitutional expressions of opinion by the
people of Florida, and similar expressions of opinion by citizens of
other States, to have the Secretary of the Department of the Interior
insert his or her will as to casino gambling within that State.
At this time, unless there is further debate, I will yield my time.
We will not necessarily ask for a rollcall vote on this matter if it
can, as in the past, be resolved by a voice vote.
I thank the Chair.
Mr. ENZI. Mr. President, I rise in support of the amendment
introduced by the Senator from Florida, Mr. Graham. This amendment has
one very simple purpose: To ensure that the rights of Congress and all
fifty states are not trampled on by an unelected cabinet official.
This amendment is very straightforward: it prohibits Secretary
Babbitt from expending any funds from this act to implement the final
regulations he published on April 12 of this year. The regulations at
issue would allow Secretary Babbitt to circumvent the rights of
individual states by approving casino-style gambling on Indian Tribal
lands. This amendment would prohibit this power grab.
Mr. President, this is the fifth time in two years that I have been
involved in amendments of this nature. I myself have offered four
previous amendments to stop this power grab by the Secretary of the
Interior, and four times this Senate has approved these amendments by
voice votes. I think this body has spoken with a clear voice that it
does not believe an unelected cabinet official should bypass Congress
and all fifty states in a decision as great as whether or not casino
gambling should allowed within the state borders.
Mr. President, recently I was invited to testify before the Indian
Affairs committee on a bill Senator Campbell has introduced to amend
the statute that governs gambling on Indian Tribal lands, the Indian
Gaming Regulatory Act. While I do not agree with all the changes
Senator Campbell has proposed to IGRA, I applaud the Chairman for
taking the initiative to attempt to make changes the proper way--by
proposing a bill, holding hearings, receiving public input from all the
stakeholders, and moving the legislation through both houses of
Congress. I have a few ideas on how I believe the bill could be
improved, and I welcome the invitation of Senator Campbell to offer
some suggestions to his bill.
In contrast to this legislative process--the proper way to make
changes to substantive law--Secretary Babbitt wants to make changes by
administrative fiat. His regulations are a slap in the face to the
governments of all fifty states, to Congress, and to all the Indian
Tribes that have negotiated Tribal-State compacts with the States in
which they are located. The Secretary's rules effectively punish those
tribes which have played by the rules. The Secretary's action will open
the floodgates to an approval process based more on political influence
than on proper negotiations between the states and the tribes. Who will
be the winners under Secretary Babbitt's new regime? Will it be the
Tribes that donate enough money to the right political party? In
contrast to the Secretary's rules, the Graham-Enzi amendment would
ensure that an unelected Secretary of the Interior won't single-
handedly change current law. This amendment will ensure that any change
to IGRA is done the right way--legislatively.
I have already had occasion on this floor to remark on the painful
irony of the timing of Secretary Babbitt's power grab. In March of last
year, Attorney General Janet Reno requested an independent counsel to
investigate Secretary Babbitt's involvement in denying a tribal-state
gambling license to an Indian Tribe in Wisconsin. Although we will have
to wait for Independent Counsel Carol Elder Bruce to complete her
investigation before any final conclusions can be drawn, it is evident
that serious questions have been raised about Secretary Babbitt's
judgment and objectivity in approving Indian gambling compacts. We
should not turn over sole discretion of casino gambling on Indian
Tribal lands to an individual who has shown such carelessness in
administering his trust responsibilities to all the Indian Tribes
within his jurisdiction.
The very fact that Attorney General Reno believed there was specific
and credible evidence to warrant an investigation should be sufficient
to make this Congress hesitant to allow Secretary Babbitt to grant
himself new trust powers that are designed to bypass the states in the
area of Tribal-State gambling compacts. Moreover, this investigation
should have taught us an important lesson: we in Congress should not
allow Secretary Babbitt, or any other Secretary of the Interior, to
usurp the rightful role of Congress and the states in addressing the
difficult question of casino gambling on Indian Tribal lands.
Mr. President, the Secretary has not given any indication in the 16
months since the independent counsel was appointed that he should be
trusted with new, self-appointed trust responsibilities over Indian
Tribes. On February 22nd of this year, United States District Judge
Royce Lamberth issued a contempt citation against Secretary Bruce
Babbitt and Assistant Secretary of the Interior for Indian Affairs,
Kevin Gover, for disobeying the Court's orders in a trial in which the
Interior Department and the Bureau of Indian Affairs were sued for
mismanagement of American Indian trust funds.
In his contempt citation, Judge Lamberth stated, and I quote,
The court is deeply disappointed that any litigant would
fail to obey orders for production of documents, and then
conceal and cover up that disobedience with outright false
statements that the court then relied upon. But when that
litigant is the federal government, the misconduct is even
more troubling. I have never seen more egregious misconduct
by the federal government.
This conduct has raised such concern that both the Chairman of the
Senate Indian Affairs Committee and the Chairman of Senate the Energy
and Natural Resources Committee have held hearings and proposed
legislation to call Secretary Babbitt to task for his mismanagement of
these funds and his disregard for the rulings of a federal court. The
Secretary's continued violation of his trust obligations to Indian
Tribes should serve as a wake-up call to all of us in the Senate. This
is not the time to allow the Secretary to delegate to himself new,
unauthorized, powers.
I want to point out that this amendment does not affect any existing
Tribal-State compacts. The amendment does not, in any way, prevent
states and Tribes from entering into compacts where both parties are
willing to agree on class III gambling on Tribal lands within a State's
borders. This amendment does ensure that all stakeholders must be
involved in the process--Congress, the Tribes, the States, and the
Administration.
Mr. President, a few short years ago, the big casinos thought Wyoming
would be a good place to gamble. The casinos gambled on it. They spent
a lot of money. The even got an initiative on the ballot. They spent a
lot more money trying to get the initiative passed. I became the
spokesman for the opposition. When we first got our meager organization
together, the polls showed over 60 percent of the people were in favor
of gambling. When the election was held casino gambling lost by over 62
percent--and it lost in every single county of our state. The 40 point
swing in public opinion happened as people came to understand the issue
and implications of casino gambling in Wyoming. That's a pretty solid
message. We don't want casino gambling in Wyoming. The people who vote
in my state have debated it and made their choice. Any federal
bureaucracy that tries to force casino gambling on us will only inject
animosity.
Why did we have that decisive of a vote? We used a couple of our
neighboring states to review the effects of
[[Page S10553]]
their limited casino gambling. We found that a few people make an awful
lot of money at the expense of everyone else. When casino gambling
comes into a state, communities are changed forever. And everyone
agrees there are costs to the state. There are material costs, with a
need for new law enforcement and public services. Worse yet, there are
social costs. And, not only is gambling addictive to some folks, but
once it is instituted, the revenues can be addictive too. But I'm not
here to debate the pros and cons of gambling. I am just trying to
maintain the status quo so we can develop a legislative solution,
rather than have a bureaucratic mandate.
Mr. President, the rationale behind this amendment is simple. Society
as a whole bears the burden of the effects of gambling. A state's law
enforcement, social services, communities, and families are seriously
impacted by the expansion of casino gambling on Indian Tribal lands.
Therefore, a state's popularly elected representatives should have a
say in the decision about whether or not to allow casino gambling on
Indian lands. This decision should not be made unilaterally by an
unelected cabinet official. Passing the Graham-Enzi amendment will keep
all the interested parties at the bargaining table. By keeping all the
parties at the table, the Indian Affairs Committee will have the time
it needs to hear all the sides and work on legislation to fix any
problems that exist in the current system. I urge my colleagues to
stand up for the constitutional role of Congress--and for the rights of
all fifty states--by supporting this amendment.
I thank the chair and yield the floor.
Mr. GORTON. Mr. President, I understand that the Senator from Hawaii,
Mr. Inouye, may wish the opportunity to speak, and perhaps more likely
will wish the opportunity to put a statement in the Record. I don't
believe that affects the proposition that the amendment will be
accepted by voice vote. But I ask that we not take that voice vote at
this time, until we are apprised of the desires of the Senator from
Hawaii.
Under the circumstances, the Senator from Missouri being here, I ask
unanimous consent that he be recognized and that we set this amendment
aside to deal with another.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Missouri is recognized.
Amendment No. 1621
Mr. BOND. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Missouri [Mr. Bond], for Mr. Lott,
proposes an amendment numbered 1621.
Mr. BOND. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 62, line 10, add the following before the period
``:Provided, That within the funds available, $250,000 shall
be used to assess the potential hydrologic and biological
impact of lead and zinc mining in the Mark Twain National
Forest of Southern Missouri: Provided further, That none of
the funds in this Act may be used by the Secretary of the
Interior to issue a prospecting permit for hardrock mineral
exploration on Mark Twain National land in the Current River/
Jack's Fork River--Eleven Point Watershed (not including Mark
Twain National Forest land in Townships 31N and 32N, Range 2
and Range 3 West, on which mining activities are taking place
as of the date of enactment of this Act): Provided further,
That none of the funds in this Act may be used by the
Secretary of the Interior to segregate or withdraw land in
the Mark Twain National Forest Missouri under section 204 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1714)''
Mr. BOND. Mr. President, this amendment, as the manager has already
stated, deals with a matter that was approved in the committee and was
taken out by a procedural move. The amendment requires a study of
mining in the Mark Twain National Forest in south-central and southeast
Missouri. It requires that it be conducted to address the scientific
gaps identified by scientists in the Departments of the Interior,
Agriculture, and others.
While the relevant information is collected, the amendment delays any
prospecting or withdrawal decisions for the fiscal year.
This amendment is a commonsense amendment. It is a modern amendment.
It enables the full-blown process to go forward before any decisions
are made.
This amendment does not permit mining. It does not permit
exploration. It does not amend, weaken, or touch environmental
standards.
It prohibits exploration and withdrawal. It requires a scientific
study of the scientific gaps identified by the agencies. It maintains
the NEPA requirement for full-blown environmental impact statements
which any withdrawal by the Secretary would preclude.
This amendment preserves, as I said, the requirement of the full-
blown NEPA process. And a full-blown impact statement will ultimately
dictate whether any mining should or should not take place if an
application is made, if there are deposits of lead discovered.
By the time any mining could take place, Senator Thurmond might be
the only Senator remaining in this Chamber.
The amendment does not give miners their way who want clearance for
prospecting now.
It does not give the zero-growth opponents their way. Contrary to
precedent and current law, they want no economic activity on these
public lands which are multiple-use lands in the State of Missouri.
Anyone who understands this issue understands that bulldozers are not
ready to roll, nor should they be. They don't even know yet what lead
might be available. There are too many unanswered questions to make a
final decision. Regrettably, some on the extreme want to preclude an
opportunity to answer those questions.
The fundamental question that this amendment addresses is whether
someday, if we were to find lead in those areas, additional lead could
be mined safely in the State of Missouri. That is a critical question
and that is one that should be answered by the scientists.
We are not here to legislate a decision and it should not be hijacked
by administrative decree.
Some suggest that we know enough already to make what would be a
permanent decision for the 1,800 miners who are under the gun for the
10 counties in south Missouri that depend upon this mining. They say we
know enough already to prevent any further mining in an area which has
90 percent of the domestic lead deposits. So we would export lead
production overseas.
This past month I met with the bipartisan county commissioners,
Democrats and Republicans, who are elected by and responsible to the
people in the counties they serve. They make up the Scenic Rivers
Watershed Partnership. They are closest to the issue. They have the
most at stake. They are the ones who represent the recreational
interests. They are the ones who represent the timber interests. They
represent the forest interests. They represent the interests of schools
and roads which depend upon the royalties that come from mining. And
they support this amendment. They said we must have a full-blown study.
There is a technical team that has been set up.
A multiagency technical team was established in 1988. It has the USDA
Forest Service, the National Park Service, EPA, U.S. Geological Survey
Water Resources Division and the Geologic Division, the Mineral
Resources Division, the Mapping Division, the Missouri Department of
Natural Resources, and the Department of Conservation. It has the
private companies involved; it has the University of Missouri, Rolla;
and it has the U.S. Fish and Wildlife Service.
What do these scientists and engineers who have begun the study say?
First, they say:
The technical team believes that there is insufficient
scientific information available to determine the potential
environmental impact of lead mining in the Mark Twain
National Forest area. This is a consensus opinion that the
technical team has held from the beginning through the
present. Due to the lack of scientific information available
to assess the potential impacts of lead mining, the technical
team proposed that a comprehensive study be conducted.
That is contained in a letter to me dated July 30, 1999, from Charles
G. Groat, Director of the U.S. Geological Survey, the Office of the
Director, the
[[Page S10554]]
U.S. Department of the Interior in Reston, VA.
I ask unanimous consent that a copy of this letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of the Interior,
U.S. Geological Survey,
Reston, Virginia, July 30, 1999.
Hon. Christopher S. Bond,
U.S. Senate, Washington, DC.
Dear Senator Bond: This is in response to your letter of
July 20, 1999, to Mr. Jim Barks, related to mining in the
Mark Twain National Forest (MTNF) area. In your letter, you
ask that we provide a brief and clear assessment as to the
quality of information that was compiled by the interagency
technical team charged with building a ``relevant database to
assess mining impacts and base future decisions.'' You ask
that we, ``specifically address the question as to the
adequacy and relevance of information currently available to
provide a solid scientific foundation for any decision to
justify either withdrawal or mining in the region.''
In 1988, an interagency technical team was assembled to
guide the identification, collection, and dissemination of
scientific information needed to assess the potential
environmental impact of lead mining in the MTNF area. Since
1989, the team has been chaired by Bob Willis of the Forest
Service. The U.S. Geological Survey (USGS) has actively
participated on the team from the beginning, with Mr. James
H. Barks, USGS Missouri State Representative, serving as our
representative.
The technical team believes that there is insufficient
scientific information available to determine the potential
environmental impact of lead mining in the MTNF area. This is
a consensus opinion that the technical team has held from the
beginning through the present. Due to the lack of scientific
information available to assess the potential impacts of lead
mining, the technical team proposed that a comprehensive
study be conducted.
In January 1998 at the request of the technical team, the
USGS prepared a proposal for a multi-component scientific
study to address the primary questions about the potential
environmental impacts of lead mining in the MTNF area. Mr.
Barks provided a copy of the proposed study to Brian
Klippenstein of your staff at his request on July 9, 1999.
Neither a requirement for full environmental review to
support a Secretarial decision nor a source of funding has
been established. For these reasons the proposed study has
not been initiated.
Please let us know if we can provide additional information
or assistance.
Sincerely,
Charles G. Groat,
Director.
Mr. BOND. Mr. President, there is further backup and supportive
information that I can provide. But, in summary, my amendment provides
the money for the research that the technical team says it needs, and
it preserves the current rigorous environmental process which will take
years to complete. If lead is discovered, if it is economically viable,
and if the company decides to develop a mining plan and apply for
mineral production, then the whole process will have to start.
To vote for this amendment is to vote to let the scientists get what
they say is necessary to make an informed decision, and it is a
consensus of all of those agencies I outlined that they don't have the
information. I think it is also a strong consensus of all the agencies
that we must protect the environmental resources of the region.
As one who has floated and fished on the streams in the Mark Twain
National Forest, I can tell you that it is a real gem. I flew over much
of the area and I visited on foot much of the area in the last month. I
can tell you that it is a beautiful wilderness. But it is a multiple-
use area. It is used for recreation; it is used for timber; it is used
for mining. We flew over some 160 exploratory drilling sites. But you
don't see them because they grow back. As a matter of fact, I had my
picture taken in one of the exploratory sites.
There is an exploratory site 2 years after the exploration stopped.
It is growing back. In another few years you won't even be able to tell
it is there.
That is why the scientists said that exploratory drilling has no
impact. So it is not even an issue. It has no environmental impact.
That is not a problem.
There are those who do not live in the area who say that no economic
use can be made. But I believe that for the good of the country, for
the good of the area, to satisfy our needs, to provide the work for
1,800 miners in the area, to provide the support for the schools, for
the communities, for the roads and infrastructure in the area, we must
follow the long established, rigorous evaluation process designed to
allow environmentally acceptable activities and prohibit those that
would be adverse to the environment.
If you listen to the scientists, as we have, you know that it takes
more information than is currently available to make that
determination. These questions deserve to be answered before we mine,
or before we slam the door in the face of the regions' residents and
force our country to become exclusively reliant on foreign sources of
this vital mineral.
I urge my colleagues to support this measure. It is a commonsense
amendment.
Mr. CAMPBELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Colorado.
Amendment No. 1577
Mr. CAMPBELL. Mr. President, I was off the floor. What is the pending
business? Are we going back to the Graham amendment now?
The PRESIDING OFFICER. We are now on Senator Bond's amendment. We
left the Graham amendment.
Mr. CAMPBELL. I ask unanimous consent to return to the Graham
amendment so that I may speak in opposition to it for a minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Colorado is recognized.
Mr. CAMPBELL. Thank you, Mr. President.
I don't think anyone has more disagreement with Secretary Babbitt
than I do as chairman of the Indian Affairs Committee. Certainly Indian
trust funds have been an issue on which we have been at odds for
literally months with the Secretary. In addition to that, as a member
of the Energy Committee, I have had my disagreements with him on
grazing, water, and many other things, too. But there are at least four
reasons to oppose this amendment.
I hope my friend, the Senator from Florida, will consider withdrawing
it.
First, after the Supreme Court decided in Seminole v. Florida that
Indian tribes cannot sue States for unwillingness to negotiate Indian
gaming agreements, it created a terrific problem, as many Members know.
We have spent a considerable amount of time in our committee, with me
as the chairman of that Committee on Indian Affairs, looking for ways
that States and tribes can come to some consensus.
We have a pending bill, S. 985. We have worked on it very hard. We
want the legislative process to proceed. The Indian Gaming Regulatory
Act requires tribes to have compacts before they can operate class III
gaming. Right now, unfortunately, the States hold all the cards since
the court decided the States do not have to negotiate in good faith.
The Secretary of the Interior is now in Federal court over his
ability to issue the kind of procedures that this amendment seeks to
stop. As the Senator from Florida probably knows, these procedures can
only be put into effect if they are published in the Federal Register.
The States of Alabama and Florida have sued the Secretary of the
Interior if this case moves ahead in the courts. It is in the interest
of all parties, States and tribes, for the United States to allow the
courts to decide once and for all if the Secretary has this authority.
I point out, the House has already rejected a similar amendment. I
have a letter dated August 2 from the Secretary of the Interior. I ask
unanimous consent that the letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
The Secretary of the Interior,
Washington, DC, August 2, 1999.
Hon. Ben Nighthorse Campbell,
U.S. Senate, Washington, DC.
Dear Senator Campbell: As you know, a floor amendment has
been submitted for intended action on the FY 2000 Interior
appropriations bill which would preclude the Department from
expending any funds to implement the Indian gaming regulation
published in the Federal Register on April 12, 1999. The
question of our authority to promulgate that regulation is in
litigation in the Northern District of Florida in a case
brought by the States of Florida and Alabama. I urge you to
oppose the amendments in recognition of the fact that the
matter is now in the courts, and we have agreed to refrain
from implementing the regulation in any specific case until
the federal district court has an opportunity to rule on the
merits of the legal issues. We believe that this matter is
best dealt with by the courts and we are eager for a judicial
resolution.
[[Page S10555]]
The regulation will have narrow application. It applies, by
its terms, only (1) when an Indian Tribe and a State have
failed to reach voluntary agreement on a tribal-state gaming
compact; and (2) when a State successfully asserts its
Eleventh Amendment immunity from a tribal lawsuit and thus
avoids the mediation process expressly provided in the Indian
Gaming Regulatory Act. The regulation will be implemented on
a case-by-case basis, controlled by the facts and law
applicable to each situation. As noted above, we are already
in litigation in federal court in Florida over the lawfulness
of the regulation.
In a letter dated May 11, 1999, I explained our concern
that we do not think a legal challenge to the regulation is
``ripe'' for adjudication until the Department had actually
issued ``procedures'' under it. Since that time, we have
sought to dismiss a legal challenge on ripeness grounds. We
intend to go forward with processing tribal applications
under our regulation and to issue ``procedures'' if they are
warranted. It is important to note that any such
``procedures'' become affective only when published in the
Federal Register. As noted above, we have agreed to refrain
from publishing any procedures until the federal district
court has an opportunity to rule on the merits of the legal
issues.
The House of Representatives rejected an amendment that
would have precluded implementation of the rule and I hope
that the full Senate will do the same. As you know, in the
past, I have recommended that the President veto legislation
containing similar provisions.
Thank you for your assistance on this important matter.
Sincerely,
Bruce Babbitt.
Mr. CAMPBELL. In that letter, the Secretary indicates the final rule
will not be implemented and no tribal agreements will be authorized
until the courts decide the real issue of whether he has authority to
issue these procedures. That may take several years.
I ask the legislative process proceed and we not short circuit it
with this amendment. I ask the Senator from Florida to withdraw that
amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. BRYAN. Mr. President, I rise today in support of the amendment
offered by the distinguished Senators from Florida and Wyoming, Mr.
Graham and Mr. Enzi. This is an amendment that prevents the Interior
Department from implementing new regulations that seriously threaten
the rights of States to regulate gaming activities within their
borders.
This amendment reinstates the prohibition on the Secretary of the
Interior, which expired on March 31, from approving casino gaming on
Indian land in the absence of a tribal-State compact. A similar
provision was adopted unanimously by the Senate as part of the fiscal
year 1998 Interior appropriations bill as well as the fiscal year 1999
omnibus appropriations bill.
As many of my colleagues are aware, the Indian Gaming Regulatory Act
enacted in 1988 divides Indian gaming into three categories. The
amendment offered for consideration on the Senate floor today addresses
the conduct of class III gaming; that is, casino gaming, slot machines,
video poker, and other casino-type games.
Under IGRA, the Congress very clearly intended to authorize Indian
tribes to enjoy and to participate in gaming activities within their
respective States to the same extent as a matter of public policy that
the State confers gaming opportunities generally to the State.
There are two clear extremes. In one case, we have the States of Utah
and Hawaii. Those are the only two of the 50 States that I am aware of
that permit no form of Indian gaming. It is very clear that because
those two States as a matter of public policy confer no gaming
opportunities upon its citizenry, Indian tribes in Utah and Hawaii have
no ability to conduct gaming activities within the class III
description, the so-called casino-type games.
Equally clear at the other end of the spectrum is my home State of
Nevada. Nevada has embraced casino gaming since 1931. It is equally
clear in Nevada law that the Indian tribes in my own State are entitled
to a full range of casino gaming. Indeed, compacts have been introduced
to accomplish that purpose.
Under IGRA, the class III gaming activity is lawful on Indian lands
only if three conditions are made:
No. 1, there is an authorized ordinance adopted by the governing body
of a tribe and approved by the Chairman of the National Gaming Indian
Commission;
No. 2, located in a State that permits such gaming for any purpose by
any person, organization, or entity--I want to return to that because
that is the key here--located in a State that permits such gaming for
any purpose by any person, organization, or entity.
No. 3, are conducted in conformance with a tribal-State compact.
As I know the distinguished occupant of the Chair fully understands,
the implementation of IGRA requires that compact be negotiated and
entered into between the Governor of the State and the tribe within
that State that is seeking to conduct class III activity. When IGRA was
enacted in 1988, Congress was careful to create a balance between State
and tribal interests. One of the fundamental precepts of IGRA is that
States and tribes must negotiate agreements or compacts that delineate
the scope of permissible gaming activities available to the
tribes. Again, the intent of IGRA is clear and I support its concept.
Very simply stated: To the extent that a State authorizes certain
gaming activity as a matter of public policy within the boundaries of
that State, Indian tribes located within that State should have the
same opportunity. There is no fundamental disagreement about that.
However, a situation has arisen in a number of States in which Indian
tribes have tried to force Governors to negotiate extended gaming
activities that are not authorized or permitted by law within that
State; for example, a State that may authorize only a lottery might be
pressed by a tribe to permit slot machines--clearly something that IGRA
did not contemplate. It is in that area that we have had some very
serious disagreements.
The new Interior Department regulations destroy the compromise that
is reflected in IGRA. It is in my view a blatant attempt by the
Secretary to rewrite the law without congressional approval. The rule
that has been promulgated allows the Secretary to prescribe
``procedures'' which the Interior Department characterizes as a legal
substitute for a tribal-State compact, in the event a State asserts an
11th amendment sovereign immunity defense to a suit brought by a tribe
claiming a State has not negotiated in good faith.
The effect of this rule for all intents and purposes nullifies the
State's constitutionally guaranteed sovereign immunity by allowing the
Secretary of the Interior to become a substitute Federal court that can
hear the dispute brought by the tribe against the State. Ironically,
the new rule permits a tribe to sue based on any stalemate brought
about by its own unreasonable demands on the State, such as insisting
on gaming activities that violate that State's law.
I support this amendment because I believe, as do the Governors and
the States Attorney General, that the Secretary does not possess the
legal authority he has sought to grant to himself under this rule, and
that statutory modifications to IGRA are necessary in order to resolve
a State's sovereign immunity claim.
In a letter to the majority leader and the Democratic leader, the
Nation's Governors stated they strongly believe that no statute or
court decision provides the Secretary of the U.S. Department of
Interior with the authority to intervene in disputes over compacts
between Indian tribes and States about casino gambling on Indian lands.
In light of this strongly held view, the States of Florida and Alabama
have already filed suit against the Secretary to declare the new rule
ultra vires.
The most troubling aspect of the new rule is that the Secretary of
the Interior grants himself the sole authority to provide for casino
gaming on Indian lands in the absence of the tribal-State compact.
As a former Governor, I appreciate the States' concern with the
inherent conflict of interest of the Secretary in resolving a major
public policy issue between a State and Indian tribe while also
maintaining his overall trust responsibility to the tribe.
I ask my colleagues to consider the Secretary of the Interior would
in effect be the arbiter where a dispute arose between the tribe and
the Governor in which the tribe was asserting a claim to have more
gaming activity than is lawfully permitted in the State. The Secretary
of the Interior, who
[[Page S10556]]
holds a trust responsibility to the tribe, would in effect be making
the determination in that State as to what kind of gaming activity
would be permitted. I cannot imagine something that is a more flagrant
violation of a State's sovereignty and its ability, as a matter of
public policy, to circumscribe the type of gaming activity permitted.
The States have asserted a wide variety of these. Some States, as I
indicated earlier, provide for no gaming activity at all. Others
provide for a full range of casino gaming, as does my own State. Other
States permit lotteries. Still others authorize certain types of card
games. Others permit a variation of horse or dogtrack racing, both on-
and off-track.
So a State faces the real possibility, under this rule, if it is not
invalidated--and I believe legally it has no force and effect, but we
want to make sure this amendment prohibits the attempt of the Secretary
to implement it--in effect, the Secretary of the Interior would have
the ability to set public policy among the respective States as to what
type of gaming activities could occur on Indian reservations within
those States. We are talking now about class III casino gaming. Even
though a State Governor and the legislature and the people of that
State may have determined, as a matter of public policy, that they want
a very limited form of gaming--a lottery or racetrack betting at the
track as opposed to off-track--the Secretary would have the ability,
when a tribe asserted more than the State's law permitted, to, in
effect, resolve that. I cannot think of anything that is more violative
of a fundamental States rights issue in terms of its sovereignty and
its ability as a matter of public policy to make that determination.
I agree with many of my colleagues that statutory changes to IGRA are
in order, in light of recent court decisions. I am hopeful that
Congress will see fit to reassert its lawmaking authority in this area
by reexamining IGRA, rather than sitting on the sidelines while the
Secretary of the Interior performs that task.
But, in the meantime, it is imperative that the Congress prohibit the
Secretary from approving class III gaming procedures without State
approval. For that reason, I urge my colleagues to support the
carefully crafted amendment by my colleague from Florida, Senator
Graham, and Senator Enzi from Wyoming--an amendment to preserve the
role for States in the conduct of gaming on Indian lands.
It is fair, it is balanced, and it is reasonable. It is consistent
with the overall intent of IGRA, which was adopted in 1988 by the
Congress, to permit class III gaming activities when the three
conditions which I have enumerated are met, ultimately with a compact
negotiated by the Governor and the tribe within that State. In the
absence of such an agreement, the Secretary of the Interior must not be
allowed to determine that State's public policy.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, it is still the opinion of the managers
that this amendment is likely to be accepted by voice vote. We still
haven't directly heard from the Senator from Hawaii, however, who may
be nearby. I hope when he finishes we can cast such a vote.
We have heard, on the other hand, the senior Senator from Illinois
wishes to speak against the Lott amendment proposed for him by Senator
Bond and will ask for a vote on that. So we will await his presence and
his speech on that subject before there is any attempt to bring that
amendment to a vote. But for all other Members with the other 64
amendments, now that we have started to deal with two of them, we would
certainly appreciate their coming to the floor and showing a
willingness to debate. The Democratic manager, Senator Byrd, and I are
certainly going to be happy to grant unanimous consent to move off of
one amendment and onto another, I am sure, to keep the debate going
with the hope of making progress on the bill.
With that, however, I yield the floor.
Mr. BYRD. Mr. President, I join with my distinguished colleague, the
manager of the bill, in urging Senators to come to the floor and debate
these amendments. It is my understanding, as it is his, that the
distinguished Senator from Illinois, Mr. Durbin, wishes to speak
against the amendment by the distinguished Senator from Missouri, Mr.
Bond, and he will certainly have that opportunity.
I trust the offices of Senators--I am sure they are watching and
listening--will pass on to the respective Senators this urgent message
that we are trying to state here, that we are here, we are here to
discuss amendments, debate them, agree to them, vote them down, vote
them up, amend them further, or whatever. But Senators need to come to
the floor and make their wishes known so that this valuable time will
not be lost. So I urge our Senators to act accordingly.
Now I yield the floor.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. INOUYE. 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. INOUYE. Mr. President, may I be recognized?
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. INOUYE. Mr. President, with the greatest respect for my friend
from Florida, I rise in opposition to the amendments he proposes to the
Interior appropriations bill.
As similar amendments have done in prior years, this amendment seeks
to prevent Indian tribal governments from engaging in activities that
have been authorized by the U.S. Congress and sanctioned by the Supreme
Court of the United States.
My colleagues know well that there has been a serious impasse in the
operation of federal law, the Indian Gaming Regulatory Act--IGRA--since
1996.
In that year, the Supreme Court concluded that the means by which
tribal governments could have recourse to the Federal courts if a State
refused to negotiate for a tribal-State compact violated the states'
eleventh amendment immunity to suit.
Thus, while there are presently over 128 tribal-State compacts as
many as 24 States, in those States where tribal-State compact
negotiations had not been brought to fruition by 1996, the Court's
ruling gave those States a trump card in the negotiations.
Those States--and there are only a few--now had a means of avoiding
compliance with the Federal law altogether. They could refuse to
negotiate any further, or refuse to negotiate at all, with the
knowledge that tribal governments had no remedy at law and no recourse
to the Federal courts.
We have tried to address this matter through legislation, and indeed,
the chairman of the Indian Affairs Committee, Senator Ben Nighthorse
Campbell, currently has a bill pending in the Senate which specifically
addresses this matter and establishes a process for resolving this
impasse.
In the interim, the Secretary of the Interior has stepped into the
breach--first by soliciting public comment on his authority to
promulgate regulations for an alternative process if tribal-State
compact negotiations should fail, and then by following the
administrative procedures to assure that everyone with an interest had
an opportunity to participate in the rulemaking process.
That was the open and public and well above-board process that was
followed, and it seems to me only fair that if a State refuses to
negotiate with a tribal government,--that there be some other means by
which an indian government can secure its right under Federal law to
conduct gaming activities.
Mr. President, if there were a proponent of this amendment that could
tell us what equitable alternative they would propose for those tribal
governments that will be directly affected by this amendment, I would
give that alternative my earnest consideration.
But all that I see going on here is an effort to assure that the
windfall enjoyed by those States that had not entered into compacts by
1996, never have to do so.
I suggest that if what we are about here is to render the Indian
Gaming Regulatory Act a nullity, then let's be direct and forthright
about it.
Let's repeal the Federal law.
Let's have the Supreme Court's ruling in Cabazon be the order of the
day and of every day to come.
[[Page S10557]]
I, for one, will not be party to this obvious effort on the part of
some States to evade the mandates of the Federal law.
There is nothing constructive being advanced today. There is no
effort to assure some balance in the positions of the respective
sovereigns, tribal and State governments, and as such, I must strongly
and respectfully oppose the adoption of this amendment.
I thank the Chair. I yield the floor.
At the request of Mr. Gorton, the following statement was ordered
printed in the Record:
Mr. SESSIONS. Mr. President, I rise today to join with my
distinguished colleagues, Senator Enzi and Senator Graham, in offering
this important amendment to the fiscal year 2000 Interior
appropriations legislation. This is an amendment that should be
supported by anyone who is concerned about the issue of gambling, and
who also believes that the Federal Government often goes too far in
exerting its will on the individual States. I think that the amendment
we offer today, which will prohibit taxpayers money from being expended
to implement the final rule published on April 12, 1999 at 64 Federal
Register 17535, is an important amendment because if it passes it will
prohibit the Secretary of the Interior from unilaterally approving the
expansion of casino gambling on Tribal land throughout this country,
including States, like Alabama, in which a Class III gambling compact
has not previously been negotiated.
Allow me to briefly share some of my thoughts on the importance of
this amendment. As Attorney General of Alabama, I cosigned a letter
with 25 other Attorneys General that was sent to the Secretary of the
Interior in regards to his promulgation of the rule we seek to block
today. Every Attorney General who signed that letter shared the opinion
that the Secretary of the Interior did not have the legal authority to
take action to promulgate regulations which gave him the authority to
allow casino gambling in this manner. In fact, I previously warned the
Secretary that if he attempted to implement this rule, he would
immediately be sued by States throughout this country in direct
challenge to these regulations, resulting in a terrible waste of
resources on both the State and Federal level. Unfortunately, my
prediction has come true, as the States of Florida and Alabama have
filed suit to block the implementation of this rule.
This is an important issue for my State, which has a federally
recognized tribe and which has not entered into a tribal-State gambling
compact. Alabama's citizens have repeatedly rejected attempts to allow
casino gambling to occur within our State. However, under the rules
that the Secretary of the Interior has promulgated, he has given
himself the authority to unilaterally decide whether tribes within the
State will be allowed to open casinos, regardless of the opinion of the
State itself, despite his obvious conflict of interest, and even in the
absence of any bad faith on the part of the States. I fail to see how
the Secretary of the Interior can cede himself the authority to make
this determination for the people of Alabama. Allow me to quote two
points from the legal analysis prepared by the States of Florida and
Alabama which highlight these issues:
The States of Florida and Alabama point out in their lawsuit that
``under IGRA, an Indian tribe is entitled to nothing other than the
expectation that a State will negotiate in good faith. If an impasse is
reached in good faith under the statute, the Tribe has no alternative
but to go back to the negotiating table and work out a deal. The rules
significantly change this by removing any necessity for a finding that
a State has failed to negotiate in good faith. The trigger in the rule
would allow secretarial procedures in the case where no compact is
reached within 180 days and the State imposes its Eleventh Amendment
immunity.''
Additionally the States' challenge points out the problems associated
with the Secretary of Interior's conflict of interest. In their
argument the States point out that ``the rules at issue here arrogate
to the Secretary the power to decide factual and legal disputes between
States and Indian Tribes related to those rights. Pursuant to 25 USC
Section 2 and Section 9, the Secretary of the Interior stands in a
trust relationship to the Indian tribes of this nation. The rules set
up the Secretary, who is the Tribes' trustee and therefore has an
irreconcilable conflict of interest as the judge of these disputes.
Therefore, the rules, on their face, deny the States due process and
are invalid.''
Both of these points help to illustrate just how badly flawed the
regulation proposed by the Secretary of the Interior is, and help
underscore why Congress should be vigilant in ensuring it cannot be
utilized.
Why is this issue so important to my State? Because in giving himself
the ability to decide whether to allow tribal Class III gambling in a
State, the Secretary of Interior has given himself the ability to
impose great social and economic burdens on local communities
throughout Alabama. Let me share with you a letter that the mayor of
Wetumpka, Jo Glenn, whose community is home to property owned by a
tribe, wrote me in reference to the undue burdens her town would face
if the Secretary were to step in and authorize casino gambling. Mayor
Glenn writes:
Our infrastructure and police and fire departments could
not cope with the burdens this type of activity would bring.
The demand for greater social services that comes to areas
around gambling facilities could not be adequately funded.
Please once again convey to Secretary Babbitt our city's
strong and adamant opposition to the establishment of an
Indian Gambling facility here.
Mayor Glenn's concerns have been seconded by other communities. Let
me share with you an editorial that appeared in the Montgomery
Advertiser in regards to regulations being discussed today. The
Advertiser wrote:
Direct Federal negotiations with tribes without State
involvement would be an unjustifiably heavy handed imposition
of authority on Alabama. The decision whether to allow
gambling here is too significant a decision economically,
politically, socially to be made in the absence of extensive
State involvement. A casino in Wetumpka--not to mention the
others that would undoubtedly follow in other parts of the
State--has implications far too great to allow the critical
decisions to be reached in Washington. Alabama has to have a
hand in this high stakes game.
Mr. President, the States of Alabama and Florida were correct to
challenge this regulatory proposal, and the writers of the above quoted
letter and editorial were correct when they voiced their objections to
it. We should not allow the Secretary of the Interior to promulgate
rules giving himself the authority to impose drastic economic,
political and social costs on our local communities, and we should take
steps now to ensure that he is unable to do so. I urge my colleagues'
support for the Graham-Enzi amendment.
Mr. GRAHAM. Mr. President, on April 12, 1999, Thomas Jefferson must
have turned over in his grave. That Monday, the Secretary of the
Interior promulgated a regulation which had the potential to
unilaterally strip the duly elected Governors of America of their
decision-making authority on the issue of casino gambling.
That day, the Secretary published regulations that would circumvent
the State-tribal compact negotiation process by allowing tribes to
apply directly to the Department of Interior for the approval of Class
III gaming. If the Secretary determines that the State and tribe have
not been able to reach an agreement, he, alone, can grant the tribes
the authority to engage in Class III gaming.
Class III gaming is the sort of gambling you might find in Atlantic
City or Las Vegas--blackjack, slot machines, craps, roulette.
It's an old story, Mr. President: Washington knows best. But in an
era when we have correctly determined that political decisions are best
made at the State and local level, this complete abrogation of States'
rights is particularly outrageous. Today, Senator Enzi and I are taking
steps to reverse the Interior Department's power grab. Our amendment to
the Interior Appropriations bill would preserve the fundamental right
of every State to decide whether or not it wants Class III Indian
gaming within its borders. It would block these efforts to unilaterally
approve tribal casino-style gambling applications by prohibiting the
use of Department of Interior funds for the implementation of the
Secretary's final rule.
[[Page S10558]]
The final rule publication on April 12 is fraught with long-term
consequences. If we allow the long-standing tribal-State negotiation
process to be bypassed, we will undermine a dialogue which has promoted
greater understanding between both parties in the negotiation of gaming
compacts.
This amendment does not limit the ability of tribes to obtain Class
III casino-style gambling provided that tribes and States enter into
valid compacts pursuant to existing law.
But even more importantly, Department of Interior's action calls into
question the basic right of States to make decisions that are in the
best interest of their residents. In the State of Florida, our
Constitution prohibits this sort of gambling, and in 1978, 1986, and
1994, Floridians overwhelmingly rejected casino gambling in three
separate statewide referendums. State and local law enforcement
officials are equally vehement in their opposition.
Mr. President, our amendment has the support of the National
Governors Association, National Association of Attorneys General,
National League of Cities, and the National Conference of State
Legislatures.
Four times in the past three years, an amendment similar to this one
has been offered in the Senate, and all four times it has been
accepted. Should it fail this time, the Interior Department will have
unfettered power to grant Class III gaming compacts over State
objections, even in State where casino gambling is against State law,
including in States like Florida, where casino gambling is prohibited
by the State constitution.
This amendment neither affects existing tribal-State compacts nor
amends the Indian Gaming Regulatory Act. It does protect States' rights
and ensures that elected State leaders--not unelected Federal
officials--have the right to negotiate gaming compacts based on public
sentiment.
I hope that my colleagues will join Senator Enzi, our cosponsors, and
myself in supporting this amendment.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, as far as I know, that concludes debate on
the Graham-Enzi amendment. As far as I know, Members are willing to
accept a voice vote on the amendment. So unless someone else rises, I
suggest the President put the question.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
1577.
The amendment (No. 1577) was agreed to.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Amendment No. 1603
(Purpose: To prohibit the use of funds for the purpose of issuing a
notice of rulemaking with respect to the valuation of crude oil for
royalty purposes until September 30, 2000)
Mrs. HUTCHISON. Mr. President, I call up amendment No. 1603.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside.
The clerk will report.
The bill clerk read as follows:
The Senator from Texas (Mrs. Hutchison), for herself, Mr.
Domenici, Mr. Lott, Mr. Nickles, Mr. Breaux, Mr. Murkowski,
Ms. Landrieu, and Mr. Shelby, proposes an amendment numbered
1603.
Mrs. HUTCHISON. 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 62, between lines 3 and 4, insert the following:
SEC. 1 . VALUATION OF CRUDE OIL FOR ROYALTY PURPOSES.
None of the funds made available by this Act shall be used
to issue a notice of final rulemaking with respect to the
valuation of crude oil for royalty purposes (including a
rulemaking derived from proposed rules published at 62 Fed.
Reg. 3742 (January 24, 1997), 62 Fed. Reg. 36030 (July 3,
1997), and 63 Fed. Reg. 6113 (1998)) until September 30,
2000.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent that Senator
Shelby be added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Mr. President, I offer this amendment on my behalf,
and in addition to Senator Shelby, Senators Domenici, Lott, Nickles,
Breaux, Murkowski, and Landrieu.
This amendment will continue an existing provision that will prevent
the Interior Department's Minerals Management Service, MMS, from
implementing an overreaching and unwise new oil royalty valuation
system. This moratorium was adopted by the Senate Appropriations
Committee and continues the same restrictions that have been passed by
the Senate and the House and signed by the President three times
previously.
I add that it has been bipartisan, and the initial moratorium and its
subsequent extensions have been supported by Senators on both sides of
the aisle, and the same is true on the House side. This will be the
fourth time that Congress will have to act to stop this action by the
Minerals Management Service. I regret that, and I wish there did not
have to be a first time. But this moratorium is absolutely necessary in
order to stop the MMS from overriding its regulatory authority by
imposing a backdoor tax on the production of oil from Federal leases.
We have heard about judges legislating from the bench. This is, I
think, legislating from the cubicle. This new rule violates both the
language and the intent of Federal law governing the assessment and
collection of Federal royalties from oil and gas drawn from Federal
lands in the Outer Continental Shelf.
Everyone agrees the existing rules are too complex and burdensome,
and Congress and the industry groups had welcomed a revision of the
rules. But the proposed rule 3 years ago which MMS announced without
prior notice to Congress could impose even more costly regulations on
oil producers and effectively enact a royalty rate hike or tax increase
which the agency simply does not have the authority to do. While the
larger oil companies might be able to absorb these costs, hundreds of
small independent producers probably will not. This new rule hits them
at a time when they are still reeling from the historically low oil
prices we have seen lately.
Anyone who has any kind of oil production in their States knows that
hundreds of thousands of oil-related jobs in our country have gone out
of existence in the last 6 months. We all know that oil prices went
down to $10 a barrel. We have not seen that in this country for 40
years. We know that small independent producers had to go out of
business, thus throwing hundreds of thousands of people off the
payroll.
In addition, there are two recent developments that justify more than
ever before the extension of the moratorium. First, the MMS itself says
it needs more time to review its rule; second, a serious ethical and
legal question has recently been raised about the rulemaking process.
Earlier this year, the Minerals Management Service did reopen the
comment period for their rule for 30 days. During that period of time,
they received extensive comments dealing with the many facets of this
issue, and they have not yet finished reviewing and considering those
comments.
Because they have held workshops and various oil industry
representatives and others interested in this issue have been able to
meet together, it is going to take time for the agency to digest the
input they have. I hope there is a window in which the Minerals
Management Service will be able to sit down and come up with something
that is fair and will not put more of our oil industry jobs off the
books and into foreign countries.
Remember, today we import more than 50 percent of the oil needs of
our country. We are certainly not doing anything to help our own oil
industry keep oil jobs in America, and it is a security risk to any
country that cannot produce 50 percent of its energy needs.
I think everything we can do to keep this industry strong is a
security issue for our country, and it is certainly a jobs issue.
Unfortunately, extending the moratorium through the next fiscal year
is the only way we are going to be able to get this agency to produce a
workable
[[Page S10559]]
rule that stays within the bounds of the law. That is what we are
trying to do.
In fact, I want our oil industry to pay its fair share of royalties
to the people of our country. Our taxpayers deserve that. That is
exactly what we are trying to do with the MMS. But the MMS has been
very heavy handed, and they act as if businesses going out of existence
is preferable to having a fair royalty rate in which the industry would
pay its fair share and we would keep jobs in America.
Several of my colleagues and I strongly urged MMS to sit down with
Members of Congress and industry representatives to discuss these
issues. It did so last year. Some progress was made, and I thought we
were coming toward a compromise. Unfortunately, the Department of the
Interior brought the progress to an abrupt halt. The only way we will
be able to sit down with the agency is if there is a moratorium until
there is a satisfactory resolution of this issue by the MMS and the
Members of Congress who are interested in keeping oil jobs in America.
In addition, I and other Members of Congress only recently became
aware of a situation that, frankly, calls the entire rulemaking process
into serious question. This spring it was revealed that a self-
proclaimed government watchdog group called Project on Government
Oversight, or POGO, gave $350,000 each to two Federal officials: One at
the Department of the Interior and the other at the Department of
Energy, apparently in connection with their work on the royalty
valuation issue.
This matter is presently under criminal investigation at the
Department of Justice, and it is the subject of an investigation by the
Department of the Interior's inspector general. Until these
investigations are complete, the prudent course would be for the
Interior Department to take a voluntary action to suspend its plan to
finalize the new royalty valuation rule. Unfortunately, the Department
has indicated it is not willing to do this. I can't imagine an agency
that has admitted or at least acknowledged that one of its employees in
this rulemaking process took $350,000 as part of a payment in a lawsuit
from this government watchdog organization, and the agency is not even
willing to say we should call a moratorium on this whole process until
we get to the bottom of this. That is why, when things such as this
happen, people don't trust their Government.
I can't imagine the Interior Department not volunteering to take this
action and sit down with us and make sure that this rulemaking process
has integrity.
The Interior Department's proposed rule defies the law and the intent
of Congress. This disregard for the law is what is at the heart of our
objection to the proposed new rule, not the $11 million the
Congressional Budget Office estimates the proposed rule will generate
in new income for the agency.
Federal law requires for purposes of royalty payments the value of
oil drawn from Federal land is to be assessed at the wellhead; that is,
when the oil is drawn from the ground. The MMS, however, continues to
try to assess the value of the oil away from the wellhead, after the
oil has been transported, processed, and marketed, each of which must
occur before the oil can be sold. In effect, the MMS is trying to get a
free ride on these costs rather than allowing companies to deduct them
from the price they ultimately receive for the oil. So you are asking
people to pay a tax on their cost of doing business. That does not make
economic sense. It certainly doesn't pass the fairness question.
There isn't any question that the existing system of computing
Federal oil royalties is overly complex. No one disputes that. Under
the current system, oil producers are often unclear as to what their
royalty payments are supposed to be, and even the MMS is often at a
loss as to what they are owed. But rather than propose a simpler method
of ascertaining royalty payments, the MMS has proposed an even more
complex and protracted litigation over just what the new rule requires.
While the proposed rule could bring in increased Federal revenues,
the increased payments could also be eaten up by the need to hire an
army of new Federal auditors to ensure compliance with the complex new
system. Furthermore, if companies decide not to go forward with their
drilling because they can't make any kind of profit, there will be no
revenue to the schoolchildren in our country because there will be no
oil royalty extracted from those companies. So the new rule is going to
be a regulatory thicket that really is not going to help the situation,
which is the problem of a too complex regulation today.
Let me also emphasize this amendment has nothing to do with the
entirely separate issue of whether or not any particular oil company
has paid the royalties it owes under the existing system.
I have heard a lot of rhetoric on this issue. I have heard my
colleagues talk about the lawsuits and the settlements and companies
that haven't paid their fair share. If any oil company has not paid its
fair share under the existing regulation, I want it to be prosecuted. I
want it to have to pay. That is not an issue in this regulation. The
only issue before us today is what is going to be the oil royalty
valuation process and is Congress going to have the right to raise
taxes or is an unelected bureaucrat who is not accountable going to
have that right.
Federal land and the mineral resources within that land belong to us
all. Proper royalties must be paid for the right to extract those
resources. Since 1953, those payments have totaled over $58 billion.
That is what we have collected in oil royalties. But enforcement of the
law and writing the law are two separate things. The MMS seems to have
forgotten that it is the responsibility of Congress, not the government
bureaucrats, to determine what the royalty is. That is why we must
continue this moratorium until Congress says this is the right
approach.
The new rule imposes upon Federal lease producers a duty to market
their oil without allowing the cost to be deducted. Oil does not sell
itself. There are overhead costs associated with listing the oil for
sale, locating buyers, facilitating the sale, and then ensuring that
the oil is delivered to that buyer. Federal law and existing
regulations only require that the lessee place the oil in marketable
condition; that is, that the oil is ready to be sold by removing water
and other impurities from it. But lessees are allowed, under current
law, to deduct the costs associated with transporting and marketing the
oil.
The new rule, as contained in the MMS' own explanation, states that
the producers must market the oil for the mutual benefit of the lessee
and the lessor. This, then, would mean producers would no longer be
allowed to deduct these costs in order to arrive at true wellhead
value, as called for by Federal law. There is no other way to slice it.
This constitutes a backdoor royalty rate hike; in effect, a tax
increase on Federal lands producers.
Secondly, the MMS rule would not allow for the proper deduction of
transportation costs. Oil producers typically have to bear the cost of
transporting the oil to the buyer, either by pipeline or truck.
Presently, those costs are determined by using a methodology recognized
by the Federal Energy Regulatory Commission, which has regulatory
authority over interstate oil pipelines. So the new MMS rule would
actually reject the Federal Government's own cost guidelines and impose
a new, untested system for determining transportation costs.
So it comes down to a simple decision: Do we want unelected
bureaucrats enacting policy with regard to our Federal lands, or do we
want Congress to establish these policies? There have been other bills
introduced that would deal with this issue. I hope we can come to an
agreement. But I don't think we can forget what has happened to the oil
industry over the last 2 years. In fact, this is coming at a time when
oil and gas production in our country is at an all-time low. In March
of this year, we saw oil prices in parts of our country going down to
even $7 or $8 a barrel.
While the price of oil has since begun to come back up--and today
stands at about $20 a barrel--the impacts of a year and a half price
crash are reverberating throughout the United States. Since the price
of oil first fell in late 1997, over 200,000 oil and gas wells have
been shut down. Most of these, of
[[Page S10560]]
course, were the low-yield marginal or ``stripper'' wells that will
never again be opened because it is not economically feasible to do it.
In March of this year, crude oil production in the lower 48 States
fell to 4.8 million barrels per day, the lowest level in 50 years. The
number of oil rigs in service in the United States fell to just over
100 for the last week in July, the lowest number in service since
records have ever been kept.
During this time, foreign oil imports rose steadily and now account
for 57 percent of consumption, well above the 36 percent import level
we saw during the 1974 oil embargo that nearly shut down the American
economy.
The oil crisis has also had a devastating impact on American jobs.
Since November 1997, we have lost over 67,000 jobs just in the
exploration and production sectors of this industry, which represents
20 percent of the total number of jobs in this field. In January 1999
alone, 11,500 oil and gas jobs were lost. If one looks back to 1981,
the numbers are even more alarming: Over half a million good-paying
American jobs have been lost in the oil and gas industry.
There are those who would say this is going to hurt our
schoolchildren, that they are not going to get the revenues from our
public lands. This is very important in my home State. There are dozens
of school districts that rely heavily on oil production; property taxes
fall with the price of oil. Statewide school districts will collect an
estimated $154 million less in revenues this year than last. That is
$154 million worth of teachers' salaries, books, computers, you name
it. That is what we are talking about in Texas when we talk about the
impact of oil on education.
So if we are going to hit the oil business again, what is it going to
do to the schoolchildren of our country? Is it going to take another
$154 million hit in my State? Do you know that they had to let teachers
off in midyear in many counties in Texas because they didn't have the
money because of oil companies going out of business and having no
income whatsoever? So when my colleagues say the schoolchildren are
going to lose $60 million, perhaps, in California alone, I point my
colleagues' attention to the fact that we have lost $154 million this
year in Texas, and we are cutting teachers off in midyear and shutting
down schools because our oil industry is on its knees.
During 1998, while the average yield for stocks in the Dow Jones
Industrial Average was a positive 18 percent, the yield for oil and gas
stocks was a negative 36 percent. So what does that do to the elderly
investor, or the person who is investing in mutual funds? What does
that do to an industry that is very important for the retirement
security of millions of our citizens?
For companies inclined toward exploration and production, earnings
and stock values have fared even worse. The yield on independent
refiner stocks, down 40 percent. The yield on exploration and
production stocks, down 63 percent. The yield on drilling stock, down
64 percent. These stock values reflect huge losses by oil companies
over the past year and a half. Corporate earnings of the 17 major U.S.
petroleum companies fell 41 percent between the first quarter of 1998
and the first quarter of 1999. Fourth quarter losses for 1998 and the
first quarter of 1999 were some of the largest witnessed in industry
history. Some companies have lost over $1 billion during each of these
quarters.
So we are not just talking about the loss of revenue to our
schoolchildren. We are not just talking about the stability of the
retirement pension plans of millions of Americans. We are talking about
flat bad policy. We are talking about cutting off an industry that is
essential to our security, essential to the retirement security of
individuals in this country, essential to job security for thousands of
workers; and we are talking about blithely saying let the bureaucrats
who aren't accountable increase the taxes without congressional
responsibility.
Congress didn't say that last year, they didn't say it the year
before, and they didn't say it the year before that. They said: No, you
will be accountable because we do care about the schoolchildren of this
country, we do care about the people living on retirement incomes in
this country, and we do care about those who have mutual funds that
include oil industry stocks; we want them to be stable, we want them to
pay their fair share, and we believe their fair share includes not
paying taxes on their expenses. It is economics 101.
So I am asking my colleagues, for the fourth straight time, to come
forward and vote to keep this moratorium so Congress can exercise its
full responsibility, so that we will not put people out of business
because the margins are so low and because they have been hit so hard
over the last year and a half.
We are joined by many groups who care about the economic viability of
our country: Frontiers of Freedom, the National Taxpayers Union,
Americans for Tax Reform, Citizens Against Government Waste, Citizens
for a Sound Economy, the Alliance for America, People for the USA,
Sixty-Plus, the Blue Ribbon Coalition, the American Land Rights
Association, the Competitive Enterprise Institute, the National Center
for Public Policy Research, Rio Grande Valley Partnership.
The moratorium that I am proposing to extend will force the
Department to take the time to craft a rule that works and accurately
reflects the will of Congress--a rule that will be fair to the
schoolchildren of our country, a rule that will be fair to the
taxpayers of our country, a rule that will make the oil industry pay
its fair share, but a rule that will not make the oil industry pay an
increased tax on their expenses. That is unheard of in economics in our
country, nor good business sense. It is confiscatory taxation, and we
will not stand for our retirees having their investments obliterated by
taxes that are unfair. The buck stops here. It does not stop on the
bureaucrat's desk; it stops here, because we are responsible for
keeping the jobs in this country. We are responsible for fair taxation
policy. We are responsible for the schoolchildren of our country. And
the way to keep these companies paying their fair share, creating the
jobs, and creating safe retirement systems for the people of our
country is to keep the moratorium on and force the Department of the
Interior to do the will of Congress, which is what it is supposed to
do. If we don't stand up for our responsibility, who will? Who will
stand up for Congress' responsibility if the Senate doesn't?
I urge the adoption of the amendment which has been adopted three
times before, and which I hope will be adopted again, so that we will
keep the oil jobs in our country, so that we will keep the retirement
security of the mutual funds that depend on oil companies being stable,
so that we will keep the schoolchildren of our country having the
ability to get revenue that is fair, and to make the oil industry pay
its fair share. That is what this amendment does.
I yield the floor.
The PRESIDING OFFICER (Mr. Hagel). The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I know there are Senators who are
waiting to speak on other measures. I am only going to speak for 2
minutes.
I congratulate Senator Hutchison on the argument she offered today.
She indicated that the last three times we have done this, I have
either been the sponsor and she the cosponsor, or vice versa.
I am here today to again indicate that whoever follows us and talks
about the fact that we ought to stick big oil, or we ought to make sure
there are no longer any slick deals, as I see some of these comments
that are going to be made here on the floor, let me suggest that if you
are taxing anything in the United States and you are doing it wrongly
or unfairly or without justification under the law, then it doesn't
matter whether somebody is going to lose money if in fact Congress says
you have to stop doing that.
That is what we have here. We are going to have Senators argue that
there are certain oil companies that are not going to have to pay.
There have been settlements where they have paid. But the truth of the
matter is, the intention of this law is, if you are going to change it
materially, Congress is supposed to be involved.
We have tried to get involved. In fact, for 6 months we have mutually
attended hearings with the MMS and the oil producers and talked about
what was wrong with these regulations and
[[Page S10561]]
rules. Everybody on both sides was saying, let's fix them; let's modify
them; let's change them. Frankly, I think the oil people who were at
those meetings who have talked with us and have gone to hearings in the
Energy Committee are more than willing to listen to realistic,
reasonable changes.
But essentially what has happened is, the MMS decided to change the
rule which historically based royalties on prices at the wellhead. They
decided they would go downstream from that wellhead, and they invented
a new concept called ``duty to market.'' They decided that they are
going to decide what expenses are allowed in moving that gas downstream
to where the marketing occurs. They are deciding what the values are at
that point. And we could go through a litany of situations where the
oil industry believes the decisions are not fair, not market oriented,
or not consistent with business practices. Frankly, I think some--
because it is oil, or big oil--think it just doesn't matter, stick
them.
Frankly, as I indicated before, we want to stand here and say: Why
don't you get serious about fixing those regulations? And we will get
off your back.
That is what is going to happen. Until they do it realistically and
we get some word that they have been fair and reasonable in the way
they are setting these royalty costs and prices that yield dollars in
taxes to the oil industry, until we find out there are some changes
made, we are going to be here on the floor saying this is a new add-on
tax to an industry that maybe 15 years ago we could talk about as if
what you taxed them didn't matter. But we know that we have a falling
production market in the United States. It is more and more difficult
to produce these products. It is more and more expensive and cheaper
overseas. Some of us don't want to see the American industry taxed any
more than is absolutely reasonable and fair.
These regulations are not right. They are not fair; they are not
based on marketplace concepts, or we wouldn't be here.
I know some are going to want to debate this for a very long time.
Maybe we will even have to ask for the debate to be closed. But we are
not going to give up very easily.
We ask Senators who pay close attention. It is not a matter of what
we could get out of this industry or what somebody alleges they would
have paid in the settlement. It is a question of whether the new rules
and regulations are right and consistent with fair market concepts or
not. As you figure the royalty, are you inventing costs and prices and
disallowing deductions and the like that have no relationship to
reality? We think that is what these are.
We would be happy to come back again and debate. I will be glad to be
here. But for now I yield the floor. I thank Senator Hutchison.
Mrs. HUTCHISON. Mr. President, if I may say so, I appreciate that
this is the Hutchison-Domenici amendment. Sometimes it is Domenici-
Hutchison because we both have worked so hard on this issue over the
last 3 years. I appreciate the leadership of my colleague from New
Mexico who feels the loss of oil jobs just as my State of Texas does.
It is a team effort.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ROBB. Mr. President, I ask unanimous consent to lay aside the
pending amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. ROBB. Thank you, Mr. President.
Amendment No. 1583
(Purpose: To strike Section 329 from a bill making appropriations for
the Department of Interior and related agencies for the fiscal year
ending September 30, 2000)
Mr. ROBB. Mr. President, I call up an amendment that has been filed
at the desk on behalf of myself and Senators Bingaman, Boxer, Cleland,
Chafee, and Torricelli.
The PRESIDING OFFICER. The clerk will report.
The legislative assistant read as follows:
The Senator from Virginia (Mr. Robb), for himself, Mr.
Bingaman, Mrs. Boxer, Mr. Cleland, Mr. Chafee, and Mr.
Torricelli, proposes an amendment numbered 1583.
Beginning on page 116, strike line 8 and all that follows
through line 21.
Mr. ROBB. Mr. President, I did not ask that the reading of the
amendment be dispensed with because it was so short and to the point.
The amendment simply strikes section 329 from the Interior
appropriations bill we are now considering. Section 329 is a rider that
is intended to overturn recent decisions handed down by the Eleventh
Circuit Court of Appeals and the Federal District Court in Washington
State dealing with national forests.
These courts were asked to examine the activities of the Forest
Service and BLM to determine whether, in allowing certain timber sales
from public lands, they complied with their own regulations and
resource management plans that were developed under the National Forest
Management Act. The courts found that they did not comply and
disallowed the sales until they did.
The forest plans guide the Federal decision-making, so that one
activity in the national forests such as logging does not occur in
detriment to other uses. These plans apply only to national forest
land--Federal land--not private land. This is land held in trust for
all people and all uses, and the Forest Service and BLM are charged
with ensuring that decisions involving these public treasures are made
wisely.
We in Congress continually insist that Federal regulators operate
using good science. But there is no good science without good data.
Section 329, which my amendment would strike, would relieve the
Forest Service from the obligation to develop any new data. And we
cannot have good decisions without good science and good data.
After decades of managing our forests primarily for the production of
logs, we are now managing forests for a variety of uses. But we cannot
do that without baseline data on threatened and endangered species.
We are changing the way we manage forests and the way we look at
forest uses. Preserving habitat and providing recreation also have
become increasingly important.
These changes are not easy. Proponents of this section, that my
amendment would strike, fear that the requirements that we make sound
decisions based on sound science and good data will lead to less
logging. This is simply not true. Managing forests for their various
uses, which include harvesting timber, requires an understanding of the
entire system, including the plants, animals, even the pests that
sometimes inhibit or damage growth.
To improve forest management, in December of 1997 the Chief of the
Forest Service appointed an independent committee of scientists to
advise him on ways to bring better science into forest planning. The
panel's findings strongly recommended the use of scientific evidence in
managing forests. The panel repeatedly advised that monitoring is
critical to sustaining forest health.
In the cases that section 329 seeks to overturn, the courts simply
require the Federal Government to undertake the monitoring that their
own forest plans and rules require. Supporters of section 329 argue
that the courts in these two cases have deviated from rulings by other
courts where challenged timber sales were allowed to proceed. In other
cases--and here is the important difference--the courts had enough data
to rule in favor of the Forest Service. There was evidence to show that
while the data gathered may not have been exhaustive, at least it was
adequate.
In the most recent cases that section 329 seeks to overturn, the
courts, after noting deference to the Forest Service, recognized the
job simply had not been done adequately or at all. The courts didn't
rule that each and every species had to be monitored. They simply said
to the Federal Government: You have to follow your own rules. You have
to gather the data in which a sound decision can be based.
For example, the Eleventh Circuit decision delayed seven timber sales
in the southern Appalachian forest in Georgia until the Forest Service
completed an evaluation of the impact the sales would have on the
forest environment.
The purpose of the information gathering is to ensure that the Forest
Service makes an informed decision before it allows the removal of
expanses of
[[Page S10562]]
timber that could be crucial to survival of endangered or threatened
species or that could affect overall forest health.
In a similar action, a Federal judge in Washington State has delayed
over 25 timber sales until the Forest Service completes the survey work
required by the Northwest Forest Plan.
In the case involving the southern Appalachian forest, the Forest
Service failed to develop the required baseline data on a number of
species in both the endangered and the threatened category and in a
category known as ``indicator'' species. For example, the Forest
Service had no population inventory information at all for 32 of 37
species in one category. The court of appeals ruled that in proffering
the tracts of timber for sale, the Forest Service failed to comply with
its own regulations. The court didn't just determine that the data was
inadequate; the court determined that the data was nonexistent.
Under most forest plans, the Forest Service develops lists of
indicator species to provide a basis for monitoring. These lists have
species such as deer, bear, bass, and trout. These species are
representative of all the other species in the forest. The list is
short and it is designed to be easy to monitor.
In the Eleventh Circuit case, the Forest Service developed such a
list but then failed to gather any information on most of the species
on the list. In the Northwest, the court found that the Forest Service
sidestepped similar requirements of the forest plan.
The Northwest Forest Plan is the legal and scientific framework that
allows timber sales to go forward in the old growth forests of the
Northwest. As our colleagues will recall, lawsuits in the early 1990s
brought logging in that region to a complete halt. The Northwest Forest
Plan, which was the result of lengthy and often painful negotiations,
allowed timber sales to go forward, provided that there was an adequate
basis to make an informed decision. The agreement provides the best
hope of sustained yield and multiple use. This latest ruling by the
Western District Court of Washington is a reminder that the agreement
is the operating plan for the forests, and that guidance memorandum
cannot exempt the Forest Service from its duty. This ruling will delay
timber sales but only until the Forest Service completes the work laid
out in the plan.
Of the 80 surveys in question, all but 13 have protocols developed
that will allow survey work to move forward. These decisions are not a
result of overstepping by the courts. They are a result of the courts
examining the rules the Forest Service laid out for itself and merely
requiring the Forest Service to operate by the rules it adopted.
Let me quote from the Eleventh Circuit decision:
While the Forest Service's interpretation of its Forest
Plan should receive great deference from reviewing courts,
courts must overturn agency actions which do not scrupulously
follow the regulations and procedures promulgated by the
agency itself.
I suggest to our colleagues who support section 329 that we should
not as a result of one court decision turn our backs on the necessity
of developing good information on plant and animal populations in our
national forests. This data is the basis of the good science we keep
talking about. It will add to our knowledge. In fact, most forest
districts already have a substantial amount of data and continue to
develop more. The majority of sales are moving forward under the
existing rules and plans. It would be a mistake to let delays in a few
timber sales negate all of the important work that is now being done.
Section 329 effectively stops data gathering for the coming fiscal
year.
In addition, section 329 establishes a new standard to be applied by
the Forest Service and the Bureau of Land Management for determining
when to approve timber sales. However, according to the agencies that
are required to implement the change, rather than speed timber sales
up, it would slow them down. To understand the effect of this change,
we ought to hear from those who will be responsible for implementing
the change.
In a statement issued jointly by the Secretaries of Agriculture and
Interior they say:
[I]f this rider were adopted, tens of thousands of
individual management activities and planning efforts would
be subject to a new legal standard.
This would have the unintended effect of increasing project
costs and increasing delays in order to conduct time-
consuming reviews of administrative records to document
compliance with the new standard.
Increased litigation and delay could also be expected as
plaintiffs seek to define the new standard in court.
In an effort to free up a limited number of timber sales in
Georgia and the Pacific Northwest, the Senate would
unnecessarily override the Federal Court ruling, agency
regulations, and resource management plans requiring the
Forest Service and Bureau of Land Management to obtain and
use current and appropriate information for wildlife and
other resources before conducting planning and management
activities.
Moreover, the bill language applies not just to timber
sales decisions and required surveys in the forests of the
Southeast and Pacific Northwest, but to all activities for
which authorization is required on all lands managed by the
Bureau of Land Management and the Forest Service.
As such, it could result in far-reaching, unintended
negative consequences.
In short, the Secretaries who would be required to implement the new
standard write that:
Section 329 is unnecessary, confusing, difficult to
interpret, and wasteful.
If enacted, it will likely result in costly delays,
conflicts, and lawsuits with no clear benefit to the public
or the health of public lands.
The Forest Service, which is charged with implementing the court's
ruling, is acting. In the southern Appalachian forests, they are
modifying the forest plan and have developed guidance to help meet the
court's directives. In the Northwest, they are completing a
supplemental environmental impact statement that will respond to the
court's concerns.
Incidentally, the SEIS was in process before the court ruled because
the Forest Service had already recognized that the plan needed
adjusting, and the plan has mechanisms in it to accommodate change.
The Forest Service does not believe this rider is necessary in order
to approve timber sales. In fact, they believe it will interfere with
timber sales.
I want to emphasize an additional problem with section 329. It does
not just apply to timber sales. Again, according to the Secretaries of
Agriculture and the Interior:
The provision which applies for one year would apply to all
of the nearly 450 million acres of land managed by the two
agencies and would apply to all management activities
undertaken by the bureaus, not just timber sales.
We should not be putting a rider on an appropriations bill to lower
the standard for government agencies in the hope that it might pass
unnoticed. One of the reasons people get cynical about their government
is that it does not always do what it says it will do. In this case, we
would lower the bar for agencies that do not want the bar lowered. The
Forest Service believes that it can do the job right. We would do a
disservice to this body and to the people who expect us to protect our
national treasure by not demanding that Federal agencies make informed
decisions with adequate data.
What section 329 proposes to do is lower the standard the first time
that agency fails to meet it. I believe this is the wrong approach. I
believe we should strike section 329 from this appropriations bill and
that the Federal Government should comply with the laws we have passed
and the rules it has established and the plans it has adopted.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Amendment No. 1603
Mrs. BOXER. Mr. President, I thank the Senator from Virginia for his
very important comments. I rise in very strong opposition to the
Hutchison amendment that was laid aside and about which, as I
understand it, probably we will have to vote on a cloture motion. I
await the word of the chairman on that.
I want to tell my colleagues that this is a very serious matter. I
hope they will listen very carefully as to why the arguments against
the Hutchison amendment are so important. I am going to say some very
strong things on the floor. But everything I say will be backed up by
fact, backed up by quotes, backed up by court cases, backed up by
recent history on oil royalty payments.
What the Hutchison amendment will do for the fourth time is to stop
American taxpayers from receiving the
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amount of oil royalties they are owed by the oil companies. Let me
repeat that. The Hutchison amendment will stop the American taxpayers
from receiving the fair share of oil royalties that they deserve. If it
does pass, and I hope it does not, it will sanction that. It will say
to the oil companies: It's OK, you continue, big oil companies,
underpaying your oil royalties. We know they have a plan to underpay.
We know that. We have heard it from people who have blown the whistle
on the oil companies.
If we go with the Hutchison amendment, our fingerprints are on this
defrauding of the taxpayers. This is very serious business. I ask my
colleagues to pay attention, because when this issue was last before
us, we did not have a whistleblower who worked for the oil companies in
court, saying that the oil companies, in essence, defrauded the
taxpayers and they planned to do so. We have that information. I will
lay it before the Senate.
What is an oil royalty payment? Right here you see what a royalty
payment is. The oil companies sign an agreement with the Federal
Government that when they drill on Federal lands in any State of the
Union, be it onshore or offshore, they must pay a fair percentage, 12.5
percent, of the value of that oil over to the Federal Government. It is
like paying rent. It is not a tax; it is a royalty payment.
If you do not own the place in which you live, you pay rent. Imagine
if you decided on a daily basis what that rent ought to be. No, no,
no--you would go to jail or you would be evicted because you have
signed a contract to pay a certain amount of rent. The oil companies
have signed a contract to pay a certain amount of rent based on the oil
they extract from Federal lands. Here it is. It ``shall never be less
than the fair market value of the production.'' Keep that in mind,
``fair market value of the production.'' They have to base their
royalty payment on the fair market value of the oil.
Senator Domenici was on the floor and he said beware of colleagues
who start talking about Congress' slick deal with the oil companies. He
said beware.
I am not saying it; USA Today said it. USA Today said it is ``time to
clean up Big Oil's slick deal with Congress.'' They say, in their view,
``industry's effort to avoid paying full fees hurts taxpayers [and]
others.''
Here is what USA Today says on the subject in this article. They knew
the Hutchison amendment was coming and this is what they said.
Imagine being able to compute your own rent payments and
grocery bills, giving yourself a 3 percent to 10 percent
discount off the marketplace. Over time, that would add up to
really big bucks. And imagine having the political clout to
make sure nothing threatened to change that cozy arrangement.
They go on to say the fact that ``big oil has contributed more than
$35 million to national political committees and congressional
candidates.'' They say that is ``a modest investment in protecting the
royalty-pricing arrangement which has enabled the industry to pocket an
extra $2 billion.''
This is a very bad situation. If you vote for the Hutchison
amendment, you are aligning yourselves with a planned effort to defraud
taxpayers. I do not know how many of my friends want to go home and
face their constituents and make that argument. This is what USA Today
continues saying:
That's millions of dollars missing in action from the
battle to reduce the Federal deficit and from accounts for
land and water conservation, historic preservation, and
several Native American tribes. In addition, public schools
in 24 States have been shortchanged: States use their share
of Federal royalties for education funding.
They conclude by saying:
. . . the taxpayers have been getting the unfair end of
this deal for far too long.
We have a chance to stand up for the consumer, for the taxpayers,
against cheaters, against people who would knowingly defraud taxpayers,
if we do not support the Hutchison amendment, if we oppose it.
We heard the Senator from Texas say: Oh, my God, things are terrible
for oil. We are suffering in the oil industry.
What she does not tell you is something very important: 95 percent of
the oil companies are not affected by the rule the Interior Department
wants to put into place which will fix this problem. The Hutchison
amendment stops them in their tracks and prohibits them from fixing
this perpetual underpayment of royalties. That is what the Hutchison
amendment does.
She says big oil and oil across the board is hurting. Ninety-five
percent of the oil companies are not affected. They are decent. They
are paying their fair share of royalties. It is the 5 percent that are
doing this slick thing that are, instead of paying their royalty based
on a market price, they are paying it based on a posted price which
they post. They decide what the price is, and we know they are cheating
us. How do we know that? That is a tough thing for a Senator to say,
but I want to prove it to you.
First of all, we know this for sure: Seven States have already won
battles in court against oil companies. The seven States have said that
the oil companies are underpaying their royalty payments to the Federal
Government and the States' share of those royalty payments, therefore,
are lower. The oil companies have settled with these States.
If they were doing the right thing, do you think they would be
settling for $5 billion so far? I doubt it. If they were so innocent,
do you think they would be shelling out--``shelling'' is a good word--
$5 billion to seven States? By the way, the Federal Government is suing
as well. We do not want to have to keep these battles in court. The
Interior Department wants to fix these problems so nobody will have to
sue anymore. There will be a fair payment. So one reason we know they
are cheating us is they are settling these cases all over the country.
There is another reason we know. This one is very direct and this one
is new. I urge my colleagues at their peril to pay attention to this
matter, please:
A retired Atlantic Richfield employee has admitted in court
that while he was Secretary of ARCO's crude pricing
committee, the major's posted prices were far below fair
market value.
He goes on to say--Anderson is his name:
He admitted he was not being fully truthful 5 years ago
when he testified in a deposition that ARCO's posted prices
represented fair market value. He said: ``I was an ARCO
employee. Some of the issues being discussed were still being
litigated. My plan was to get to retirement. We had seen
numerous occasions, the nail that stood up getting beat
down.'' Said Anderson, ``The senior executives of ARCO had
the judgment that they would take the money, accrue for the
day of judgment, and that's what we did.''
Here is a retired former employee of one of the oil companies that
has been ripping off the taxpayers admitting it in a court of law--he
could go to jail if he lies--swearing on a Bible, an oil company man,
that they sat around and agreed to understate the value so they could
get away with it and wait for the day of judgment. Talk about a smoking
gun, here it is. This is new information, and yet Senator Hutchison is
asking you to stand with those people, one of whom admitted they
actually had a plan to defraud the taxpayers.
This is a very serious issue. It is not politics. It involves a plan
to understate the market price. It is wrong.
Mr. DURBIN. Will the Senator from California yield for a question?
Mrs. BOXER. I will be happy to yield.
Mr. DURBIN. I want to ask my colleague, the Senator from California,
if she will clarify several things so those following the debate
understand the parameters of this issue. In every instance here are we
talking about private oil companies drilling for oil on public lands?
Mrs. BOXER. That is correct, I say to my friend. These are private
oil companies that have signed an agreement with the Federal Government
to pay the royalty payment based on the fair market value when they
drill on land that is owned by the people of the United States of
America.
Mr. DURBIN. I further ask the Senator from California, it has been my
experience in Illinois that coal mining companies and oil exploration
companies will go out and buy private land, at least an easement or
right to drill on private land, and pay compensation to the landowner
for that purpose. But in this situation, we are dealing with land owned
by the people of America----
Mrs. BOXER. Correct.
Mr. DURBIN. That these companies are using to make a profit; is that
correct?
[[Page S10564]]
Mrs. BOXER. That is absolutely correct.
Mr. DURBIN. And their payment to the taxpayers for the use of our
land, the land owned by the taxpayers across America, is this royalty;
is it not?
Mrs. BOXER. That is correct.
Mr. DURBIN. Can the Senator from California explain the impact, then,
of the Hutchison amendment, how this will affect the royalty that is
paid by the oil companies that want to drill for oil and make a profit
from that oil off land owned by taxpayers?
Mrs. BOXER. What the Hutchison amendment does is it puts off for the
fourth time any move by the Interior Department to fix the problem we
are facing with this underpayment of the royalties that are due the
taxpayers.
The Interior Department has held a series of 17 meetings across the
country. They have met with the oil companies, they have met with
Members of Congress, they have done everything, and they are ready to
finalize a rule. Every time they are ready to promulgate a rule to fix
this problem, up comes one of the Senators from the oil States who
says: Oh, wait, wait, wait, it is too complicated; it isn't a good
idea.
It isn't a good idea from the oil companies' perspective because as
we just heard this one whistleblower say, they want to put off the day
of judgment and use this float to make more and more money. But my
friend is right in his questions.
Mr. DURBIN. I say to the Senator from California, let's consider two
possibilities. If the royalty is based on the price of oil, there is a
possibility that the royalty payments might go down if it is
recalculated; there is a possibility that it might stay the same, or it
might go up.
But I take it from this amendment that the oil companies that are
pushing this amendment are so certain that their payments to the
Federal Government are going to go up that they want to stop the
Federal Government from recalculating the royalties.
The net impact of this, and the Senator from California can correct
me, is that the oil companies are being protected from paying their
fair share of rent or royalties for using public lands, and the
taxpayers, because of this amendment, are the losers. We are the ones
who do not get the royalties back from those who want to drill all the
oil out of land that we own and not pay the taxpayers of this country
for the right to do so.
Mrs. BOXER. I say to my friend, I can put it in specific dollars.
Already the Hutchison amendment, since she first offered it and our
colleagues backed her on it, has lost taxpayers $88 million, and if she
succeeds in this, although Senator Hutchison has pared it back to a
year, another delay of a year, it is another $66 million. That is a lot
of millions of dollars. Taxpayers already have lost $88 million, and
they are about to lose another $66 million unless we can stop this. The
Interior Department is with us 100 percent.
Mr. DURBIN. If the Hutchison amendment prevails and is not defeated--
--
Mrs. HUTCHISON. Mr. President, I wonder if the Senator will yield on
that point because I think there has been an error in the amount that
we are talking about.
Mr. DURBIN. If I can say to my colleague, the Senator from Texas, I
was only asking a question of the Senator from California who I believe
has the floor.
Mrs. BOXER. And I will address this----
The PRESIDING OFFICER. The Senator from California has the floor.
Mrs. BOXER. I have a letter that backs up those numbers which I will
put in the Record. I will continue to yield for a question.
Mr. DURBIN. The point I am getting to is, if the Hutchison amendment
is adopted, then basically we are giving a discount to these oil
companies from the amount they owe taxpayers for drilling oil out of
public lands and selling it at a profit; is that the net impact of this
amendment?
Mrs. BOXER. That is correct.
Mr. DURBIN. I know we are in an era of surpluses where we are trying
to figure out ways to give away money, but I ask the Senator from
California why would we decide to give money to oil companies at this
point? Why adopt an amendment that would give them additional profits
for drilling oil on lands owned by the taxpayers, the people of
America?
Mrs. BOXER. Mr. President, I think this is a special interest rider.
I have to say that, with all due respect. By the way, it doesn't give
money to all the oil companies. It only gives it to the top 5 percent,
the ones that are vertically integrated. Ninety-five percent of the oil
companies are not affected, and they are paying the fair market value.
They are paying the royalty based on the fair market value.
I ask unanimous consent, before yielding to the Senator for more
questions, to have printed in the Record a letter from the Secretary of
the Interior, which was based on the original Hutchison amendment,
which addresses the question of the dollars lost. It is very clear what
will be lost. In her additional amendment of 21 months, they calculate
it at $120 million, and we are just paring it back to the 1-year
number. We also have a letter from the Office of Management and Budget
which clearly states that the rider, as it is before us now, will cost
taxpayers about $60 million.
I ask unanimous consent to have those two documents printed in the
Record when I complete my remarks.
The PRESIDING OFFICER. Is there objection?
Mrs. HUTCHISON. Mr. President, I object. I do want the Senator to be
able to enter her documents in the Record, but I want to also have
entered in the Record that the Congressional Budget Office has
estimated it would be $11 million. That would be the cost to the
taxpayers; that is, if the oil companies continue to drill. So she
may----
Mrs. BOXER. Mr. President, may we have regular order.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I don't ever remember having one Senator object to
another Senator putting a document in the Record. I am kind of shocked
at that.
I ask, again, unanimous consent to have printed in the Record the two
Federal agencies versus the one that back us up on our documentation. I
ask unanimous consent that I be allowed to have those printed in the
Record at the conclusion of my remarks.
The PRESIDING OFFICER. Is there objection?
Mrs. HUTCHISON. I will not object, as long as the Record also shows
the CBO has said $11 million and that assumes people are not going to
go out of business.
Mrs. BOXER. Mr. President, I have no objection to the Senator
entering into the Record anything she wants, but I can say very clearly
that we know what this is costing.
The Senator herself admits it is $11 million taken out of taxpayer
pockets. We believe it is $66 million.
I continue to yield to my friend.
Mr. DURBIN. Mr. President, it is my understanding that these
payments, these royalties come through the Federal Government and back
to many of the States. Is my understanding correct?
Mrs. BOXER. Absolutely. In other words, if there is oil being drilled
in Texas, it is on Federal lands, but the Federal lands are within
Texas. Texas gets 50 percent of the royalty payment. I know in
California, it is 50 percent if it is onshore and about 25 percent if
it is offshore. In many of the States, including California, these
funds go directly into the classroom and to the schools.
Mr. DURBIN. So in some of the States, for example, Texas and
California, if the Hutchison amendment passes, there will be fewer
dollars from these royalty payments coming back to the States of the
two Senators engaged in this debate.
Mrs. BOXER. That is correct, and into the classrooms.
Mr. DURBIN. I ask the Senator, it is my understanding from her
previous statement that many of the States have sued the oil companies
saying: You didn't pay enough. You owed us more in royalties. You
underpaid the amount you were required to pay for drilling for oil on
federally owned public lands for profit.
Mrs. BOXER. My friend is correct. To be very specific, I will tell
the Senator, the oil companies that are being so defended here have
agreed in court to pay up not $1 billion, not $2 billion, but $5
billion to these States; in essence,
[[Page S10565]]
agreeing that they undervalued. Alaska got $3.7 billion, for example;
California, $345 million. By the way, private owners are also
complaining, and they have resolved some of the disputes for $194
million.
Mr. DURBIN. I ask the Senator from California, as a followup
question, so I understand it completely, these private oil companies go
on to public lands, drill for oil which they sell for a profit. They
are charged a royalty based on the price of the oil. The impact of this
amendment by the Senator from Texas would be to say to the Department
of the Interior: You cannot recalculate the royalty to raise it. So we
are protecting these oil companies from an increase in what they are
going to pay taxpayers for drilling on public land, which means more
money in their pocket. The losers are not only Federal taxpayers but
States such as Texas and California and their taxpayers who lose the
benefits of the money that might come back to them from these
royalties?
Mrs. BOXER. My colleague is right. But it is even worse than that
because a royalty payment is a contract. The oil companies have signed
a contract. It says very clearly ``fair market value.'' It is not that
the Interior Department wants to increase the percent, for example,
that is paid; they just want to make sure the contract is carried out.
It says: The value of production for purposes of computing royalty on
production from this lease ``shall never be less than the fair market
value of the production.'' So all they are trying to do is correct a
serious problem. And we know, because I can show my colleague another
chart on posted prices versus the market prices of ARCO, I will show
him what has happened. Right now the oil companies, these 5 percent of
them that are cheating us, they base their royalty payment on what they
call posted prices. They create the price. If we could show this to the
Senator, look at the difference between the market price and the posted
price. This is one oil company, but I could show my friend, every
single one of these oil companies, by some kind of magic action, they
have the same spread. And if you heard what the ARCO executive said,
the former executive, they did this on purpose. They made the posted
prices below the market price.
Mr. DURBIN. I only have three questions, and I will stop.
Mrs. BOXER. I appreciate my colleague asking as many questions as he
wants.
Mr. DURBIN. The Senator made reference to a Wall Street Journal
article where a former official from ARCO said--was this under oath or
was it just a public statement in terms of their efforts to try to
reduce the royalty payments to the Federal Government for this private
company to drill oil on public land and make a profit?
Mrs. BOXER. The article that I quoted is Platt's Oilgram News--an oil
industry newsletter. In fact, my colleague is right, they talk about a
court case in which a retired Atlantic Richfield employee admitted in
court----
Mr. DURBIN. Under oath.
Mrs. BOXER. Under oath, penalty of perjury, that while he was
secretary of ARCO's crude pricing committee, the major's posted prices
were far below the market value.
Mr. DURBIN. So this gentleman, no longer employed, conceded the point
which you have been making during the course of this debate, that these
oil companies are really cheating the Federal Government, the taxpayers
of this country, because they are using our public lands and not paying
a fair royalty payment for the oil they are extracting and selling at a
profit.
Mrs. BOXER. That is absolutely right. They are basing their royalty
payment on a price that is not reflective of the fair market value. It
is a price they made up. It is as if one day you woke up and let's say
you paid rent, which my friend probably does here in Washington, DC,
and you just decided one day that the fair market value of the rent was
lower than your lease.
Mr. DURBIN. My landlord wouldn't allow that.
Mrs. BOXER. He would not allow that. He would probably evict you. Yet
what do we have here in this Senate. We have Senators standing up
condoning this kind of behavior.
Mr. DURBIN. I ask the Senator from California, in my home State of
Illinois, there are many small oil producers that are going through
very difficult times. Some of them may not survive. There has been an
argument made that we have to give this break, in the Hutchison
amendment, to these oil companies to help these small producers and
help the oil industry.
If I vote against the Hutchison amendment and go home to Illinois and
face these small oil companies that are trying to survive in difficult
times, will they be saying to me: You have just cut off the flow of
money to us? What companies are affected by this Hutchison amendment?
Mrs. BOXER. First, let me say there are 777 companies that are not
impacted at all by this Interior rule, but there are 44 companies that
are impacted. Let me say to my colleague, I voted to help the small oil
companies. I was proud to support the Domenici amendment. We took it up
recently when we helped the steel companies. If we want to help the oil
companies because they are having tough times, I will be right there.
If there are reasons to help smaller companies, I am right there. And I
have always been right there.
But it seems to me we can't stand on the floor of the Senate and help
the largest oil companies--most of these are the largest; not all, but
most--5 percent of the oil companies that are out-and-out cheating the
taxpayers. We know it because it has been testified to in a court of
law, and we know it because they have been settling these cases all
over the country. My friend should feel very comfortable when he
opposes the Hutchison amendment case that he is impacting only 5
percent.
(Mr. SMITH of Oregon assumed the Chair.)
Mr. DURBIN. Will the Senator yield for a question?
Mrs. BOXER. Yes.
Mr. DURBIN. Is the Senator aware of the fact that the Los Angeles
Times, on July 20 of this year, in analyzing this debate, concluded by
saying, ``not since the Teapot Dome scandal of the 1920s has the stench
of oil money reeked as strongly in Washington as it is in this case''?
I ask the Senator from California, isn't it odd that on an
appropriations bill we are considering a string of riders that are of
such import and controversy, putting them on a spending bill instead of
having a hearing so the oil companies could come in and try to defend,
if they would like to, so the Department of the Interior can come in
and basically explain why they think taxpayers across America are
ripped off by this amendment? It seems to me to be an odd state of
affairs that we have seven, eight, or nine different riders on this
bill which really go to important, substantive issues that have not
been addressed by this Congress during the course of this year. Does
the Senator agree with me that this is an exceptional procedural issue
to be taking up on a spending bill?
Mrs. BOXER. Well, I think it is not appropriate. I hope the Senator
from Texas will not proceed with this. She knows if she does--and we
are very open about this--we are going to be on our feet a long time.
So we are going to have a cloture vote to see where this all comes out.
I want to say this to my friend and then I will yield to my friend from
Idaho.
Mr. CRAIG. I just have a question on procedure, not on the substance,
if the Senator would not mind yielding.
Mrs. BOXER. I do mind yielding at this point. I don't want to lose my
train of thought.
My friend is so right in his understanding of what this means. This
is an example of legislating on an appropriations bill. This Hutchison
amendment was put into the committee and stripped out because of the
way it was put into the committee. It was stripped out. It has been
defined and technically changed, and now it is being offered. But it is
still the same thing. You know, you can put a dress on a hippopotamus
and it still looks like a hippopotamus. That is what this is. This is a
very ugly amendment.
I want to mention one thing in answering the question. I was very
pleased that my friend read the Los Angeles Times editorial. It is a
newspaper that now has Republican ownership. I think that is very
important. I want to read a couple of other statements from it. I see
my friend from
[[Page S10566]]
Wisconsin is here. Is he going to ask me a question as well?
Mr. FEINGOLD. Yes.
Mrs. BOXER. This Los Angeles Times article says, ``The Great American
Oil Ripoff.''
It says:
America's big oil companies have been ripping off Federal
and State governments for decades by underpaying royalties
for oil drilled on public lands. The Interior Department
tried to stop the practice with new rules, but Congress has
succeeded in blocking their implementation, and will again if
the Senate bill calling for a moratorium on the new rules
proposed by Senators Hutchison and Domenici comes up before
the Senate.
It has and here we are.
The large integrated oil companies, not the small
independent producers, have been cheating the State and
Federal Treasuries by computing their royalties on the so-
called ``posted rights'' rather than the fair market price.
That is what we are talking about, computing royalties on posted
rights, rather than fair market price.
It could be as much as $4 or $5 a barrel lower.
The Interior Department estimates this practice costs the
taxpayers up to $66 million a year.
Senator Hutchison says it is $11 million, and that is a lot; but we
think it is $66 million, and so does the OMB.
Two years ago, Interior drew up rules that would stop the
underpayment but Congress has blocked implementation.
They go on to explain:
The bottom line is, Congress should not buckle to the
pressure of the oil companies, and the Hutchison amendment
should be defeated.
Mr. CRAIG. If the Senator will yield briefly, I will leave the
Senators to debate this. We have the Robb amendment on the floor.
Several of us came to debate that, expecting it would be stacked for a
vote in the morning. Obviously, you are going to continue this debate
into tomorrow. I wonder what your plan is for the evening because it is
predicated upon a unanimous consent agreement that we want to craft. If
you plan to debate late into the evening, we will not stay.
Mrs. BOXER. No, we don't.
Mr. CRAIG. There are four Senators, including the Presiding Officer,
who came to the floor because the Senator from Virginia was on the
floor with his amendment. We hoped to debate that within the next 35 to
40 minutes if the Senator will consider yielding the floor.
Mrs. BOXER. I don't have any intention of talking more than 40
minutes. I will be yielding for a question. I thought the Senator came
because he was drawn into this debate.
Mr. CRAIG. No. I just say I think it is a rather baseless debate,
with a lot of politics.
Mrs. BOXER. I was trying to----
Mr. CRAIG. I will stay out of the substance.
Mrs. BOXER. I was trying to use a little bit of humor.
Mr. CRAIG. I am more interested in the timing for this evening, on
behalf of five Senators.
Mrs. BOXER. I told my friend the time. I don't intend to go over 40
minutes.
Mr. DURBIN. Will the Senator yield for a question?
Mrs. BOXER. I will be glad to yield for a question.
Mr. DURBIN. Not only do I not think this is baseless, I want to touch
all the bases so the Senator from Idaho can understand why we think
this is worthy of debate on the floor of the Senate.
I ask the Senator from California this: We had a big debate about
welfare reform and welfare ``Cadillacs.'' We are talking about welfare
``tankers'' here--$11 million--or $66 million going to these major oil
companies. I say to the Senator from California, how many times have we
done this? How many times have we postponed this decision by the
Department of the Interior to give to the taxpayers of this country the
fair share they are entitled to for these oil companies to use our
lands--the lands of people who live in Illinois, California, Idaho, and
Texas--to drill oil. How many times has the industry come in and, with
an amendment similar to the one before us, tried to stop this
recalculation?
Mrs. BOXER. This is the fourth time this amendment has come before
the body. I have to say to my friend, I don't think it has ever gotten
the attention it needs. To come in and say it is a baseless debate,
when we are talking about as much as $66 million on top of the $88
million we have already lost from the three other times this amendment
came before us, is unbelievable to me. It is unbelievable that we close
our eyes to this kind of purposeful rip off, and to call it a baseless
debate, I find that amazing.
Mr. DURBIN. If the Senator from California will further yield, is not
the fact that these States have come forward in court and sued the oil
companies successfully evidence of the fact that the oil companies have
been underpaying the Federal taxpayers, as well as the State taxpayers,
and this amendment will continue that?
Mrs. BOXER. That is absolutely correct. Let me reiterate what I said.
In cases all across this country, there have been settlements in seven
different States, and $5 billion has been collected from the oil
companies in these settlements. Now, if the oil companies had such
clean hands and they were paying their fair amount of royalties, I
assure my friend they would not part with $5 billion--I didn't say
million, I said $5 billion. I don't even know what $5 billion looks
like in a room. All I can say to my friend is, it is more than we spend
on Head Start in a year.
Mr. FEINGOLD. Will the Senator from California yield for a question?
Mrs. BOXER. Yes.
Mr. FEINGOLD. I ask the Senator from California this because I share
her strong opposition to this amendment, which would allow oil
companies to continue to underpay the U.S. Government in royalties for
drilling on public lands. It is my understanding this rider was
modified by the managers' amendment. But, as originally drafted, the
rider blocks the implementation of new Interior rules to stop these
underpayments, just as their implementation was blocked in the last
Congress; is that correct?
Mrs. BOXER. Yes. This is the fourth time that this Interior
Department ``fix'' to ensure fair royalty payments has been stopped in
its tracks, unless we defeat the Hutchison amendment.
Mr. FEINGOLD. I know the Senator from California is obviously
concerned about big windfalls for the oil companies. The Interior
Department estimates that underpayments by the oil companies cost the
taxpayers up to $66 million a year. I am wondering if she is aware of
some of the largest oil companies that benefit from it.
Mrs. BOXER. I would be very pleased if the Senator could put that
into the Record because I haven't done that.
Mr. FEINGOLD. They are not small mom-and-pop, independent producers.
They are companies like Exxon, Chevron, BP Oil, Atlantic Richfield, and
Amoco. I ask the Senator if she is aware of some of the campaign
contributions that entities such as this put forward in order to
achieve this end.
Mrs. BOXER. I am very glad the Senator put out some of the names of
the big oil companies that would be impacted by this Interior rule that
Senator Hutchison is trying to get. Fully 95 percent of the oil
companies are not impacted. Only 5 percent are impacted. The 95 percent
of the others are paying their fair share of royalty payments. That is
something to be happy about. They are good corporate citizens paying
their fair share of royalty payments based on fair market value just as
they signed in their lease agreements with the United States of
America. But it is the 5 percent of most of the large ones that are
getting away with it.
I say to my friend that he is a champion of campaign finance reform.
I am so proud to be associated with him on that issue.
I can only say to my friend that this issue was mentioned in the USA
Today editorial, dated Wednesday, August 26, 1998, that big oil has
contributed more than $35 million to national political committees and
congressional candidates. They make the point. These are their words,
not my words. They say that is a modest investment for protecting
royalty pricing arrangements which enables the industry to pocket an
extra $2 billion.
My friend is on a certain track. I think it is important.
Mr. FEINGOLD. I am grateful for the Senator's tremendous leadership
on this.
She may be aware that from time to time I do something that I call
``calling of the bankroll''--interest in companies that contribute
large sums of
[[Page S10567]]
money in terms of campaign contributions.
I am wondering if the Senator is aware that during the 1997-1998
election cycle oil companies gave the following in political donations
to the parties and to Federal candidates:
Exxon gave more than $230,000 in soft money and more than $480,000 in
PAC money.
Chevron gave more than $425,000 in soft money and more than $330,000
in PAC money.
I wonder if the Senator is aware that Atlantic-Richfield gave more
than $525,000 in soft money and $150,000 in PAC money.
BP Oil and Amoco, two oil companies which merged into the newly
formed petroleum giant, BP Amoco, gave a combined total of $480,000 in
soft money, and nearly $295,000 in PAC money.
This is just some of the information we have. I don't know if the
Senator was aware of these figures.
Mrs. BOXER. I say to my friend that I was not aware of those specific
figures. It is very rare that I feel that if Congress goes along with
something it is really part of an ugly situation. I feel that way here.
I feel that we have enough information now to take a stand with the
Interior Department, with the consumers, and with over 70 groups that
stand with us against the Hutchison amendment.
I hope my friend will listen to some of these groups because my
colleague, my friend from Texas, listed groups that were with her. I
think it is important that we compare these groups, who they stand for,
and who they speak for. They are with us on our side trying to stop
this oil company rip off, stop the Hutchison amendment: American
Association of Educational Services Agencies, American Association of
School Administrators, the American Lands Alliance, the Americans Ocean
Campaign, the Better Government Association, Common Cause, Consumer
Project on Technology, Council of State School Officers, Friends of
Earth, Funds for Constitutional Government, Government Accountability
Project, Green Peace, the Mineral Policy Standard, National
Environmental Trust, National Parks and Conservation Association, the
National Rural Education Association, the National Resources Defense
Fund, the Navajo Nation, Ozone Action, Public Citizens, Congress Watch,
Public Employees for Environmental Responsibility, Safe Energy
Communication Council, the Surface Employees International Union, and
the Taxpayers for Common Sense.
They are with us on this.
The United Electrical-Radio Machine Workers of America.
These are just some of the groups that are opposed to the Hutchison
amendment, for one basic reason: They believe the big oil companies,
the 5 percent of them, are cheating the taxpayers.
These are all public interest groups.
Mr. FEINGOLD. I finally ask the Senator to make the comparison
between the list that she just read. By and large these are very
important groups that represent the average people of this country.
There is no way four of them could get together and give $2.9 million
as these four corporations I just described did. Obviously these four
corporations want this rider to be a part of the Interior
appropriations bill. It is the powerful political donors. They may well
get their way despite the credibility of groups and interests that the
Senator just indicated.
I, again, very much thank the Senator from California for her
leadership on this.
I rise today to share my concern about the number and content of
legislative riders to address environmental matters contained in the FY
2000 Interior Appropriations Bill. I hope that all provisions which
adversely effect the implementation of environmental law, or change
federal environmental policy, will be removed from this legislation
when it returns to the floor.
I believe that the Senate should not include provisions in spending
bills that weaken environmental laws or prevent potentially
environmentally beneficial regulations from being promulgated by the
federal agencies that enforce federal environmental law.
I want to note, before I describe my concerns in detail, that this is
not the first time that I have expressed concerns regarding legislative
riders in appropriations legislation that would have a negative impact
on our nation's environment.
For more than two decades, we have seen a remarkable bipartisan
consensus to protect the environment through effective environmental
legislation and regulation. I believe we have a responsibility to the
American people to protect the quality of our public lands and
resources. That responsibility requires the Senate to express its
strong distaste for legislative efforts to include proposals in
spending bills that weaken environmental laws or prevent potentially
beneficial environmental regulations from being promulgated or enforced
by the federal agencies that carry out federal law.
The people of Wisconsin have caught on to what's happening here. They
continue to express their grave concern that, when riders are placed in
spending bills, major decisions regarding environmental protection are
being made without the benefit of an up or down vote.
Wisconsinites have a very strong belief that Congress has a
responsibility to discuss and publicly debate matters effecting the
environment. We should be on record with regard to our position on this
matter of open government and environmental stewardship.
I have particular concerns regarding several riders contained in this
bill. I will site three examples of provisions of concern to me. I am
concerned that we failed to strip the rider on the mining millsite
issue. This is the second rider of this type we have considered. In
Section 3006 of Public Law 106-31, the 1999 Emergency Supplemental
Appropriations Act, Congress exempted the Crown Jewel project in
Washington State from the Solicitor's Opinion. This rider, in contrast
to the previous rider, applies to all mines on public lands.
I am also concerned that we have chosen to again include a grazing
policy rider as well. It requires the Bureau of Land Management to
renew expiring grazing permits under the same terms and conditions
contained in the old permit. This automatic renewal will remain in
effect until such time as the Bureau complies with ``all applicable
laws.'' There is no schedule imposed on the Agency, therefore necessary
environmental improvements to the grazing program could be postponed
indefinitely. This rider affects millions of acres of public rangelands
that support endangered species, wildlife, recreation, and cultural
resources. The rider's impact goes far beyond the language contained in
the FY 1999 appropriations bill, in which Congress allowed a short-term
extension of grazing permits which expired during the current fiscal
year. As written, this section undercuts the application of
environmental law, derails administrative appeals, and hampers
application of the conservation-oriented grazing Guidelines.
I also want to voice my opposition to the amendment that would allow
oil companies to continue to underpay the U.S. government in royalties
for drilling on public lands. I understand that this rider was modified
by the manager's amendment, but as originally drafted the rider blocks
the implementation of new Interior Department rules to stop these
underpayments, just as their implementation was blocked in the last
Congress.
This is a huge windfall for the oil companies--and as it is with so
many special interest provisions that find their way into our
legislation, to the wealthy donors go the spoils, while the taxpayers
get the shaft. The Interior Department estimates that these
underpayments by the oil companies cost the taxpayers up to $66 million
a year. And the oil companies that enjoy this cut-rate drilling are not
small independent producers. On the contrary, the oil companies that
benefit are among the largest in the world. Names like Exxon, Chevron,
BP Amoco and Atlantic Richfield.
I'd like to take a moment to Call the Bankroll on these companies,
something I do from time to time in this chamber to remind my
colleagues and the public about the role money plays in our legislative
debates and decisions here in this chamber.
During the 1997-1998 election cycle, oil companies gave the following
in political donations to the parties and to federal candidates:
[[Page S10568]]
Exxon gave more than $230,000 in soft money and more than $480,000 in
PAC money;
Chevron gave more than $425,000 in soft money and more than $330,000
in PAC money;
Atlantic Richfield gave more than $525,000 in soft money and $150,000
in PAC money;
BP Oil and Amoco, two oil companies which have merged into the newly
formed petroleum giant BP Amoco, gave a combined total of more than
$480,000 in soft money and nearly 295,000 in PAC money.
That's more than $2.9 million just from those four corporations in
the span of only two years, Mr. President. They want this rider to be
part of the Interior Appropriations bill, and as powerful political
donors they are likely to get their way.
I'd like to discuss one final rider, which undoubtedly deserves its
own Calling of the Bankroll. Though I understand that this rider has
now been modified by the substitute amendment, the underlying bill
initially prohibited the use of funds to study, develop, or implement
procedures or policies to establish energy efficiency, energy use, or
energy acquisition rules. Unchanged, this language would have blocked
federal programs which cut federal agencies' energy expenditures, save
taxpayer funds, and contribute to reductions in pollution.
In conclusion, I think that delay of mining law enforcement is
indefensible, as are the other changes we are making in environmental
policy without full and fair debate. I hope my colleagues will join me
in demanding that this bill be cleaned up in Conference.
Mrs. BOXER. I thank my friend and commend my friend from Illinois. I
think their questions and their caring are very important to this
debate. We have to take a stand on the floor of the Senate once in a
while for average people--people who are faceless in this institution.
They think it is dominated by the special interests. My friend from
Wisconsin who works so hard every day to get the special interest money
out of this Senate has made a very important point--that the very
companies that are going to benefit from the Hutchison amendment have
given huge contributions to Federal candidates and to Federal
committees.
If you put that together, as my friend points out, with the retired
ARCO employee testimony under oath that he lied 5 years ago--he
admitted he was not truthful when he testified in the deposition that
ARCO-posted prices represented fair market value. He goes on to
honestly say he was afraid he would lose his retirement. He was afraid
he would be fired. You put together the contributions from big oil with
the testimony of this former ARCO employee, who sat in the room when
the decision was made to stop taxpayers from getting their fair share--
when you put that together with the recent settlements by many States
with the oil companies, the oil companies saying to the States: Take
your lawsuit out of here. We will pay you billions of dollars to go
away. We will not go to court to try to make the case that oil royalty
payments are fair. You put all of that together, and it adds up to a
bad situation.
I would be so proud of this Senate if we stood together on behalf of
the people and on behalf of the consumers against the bad actors in the
oil industry, who according to this employee, said we will put off
judgment day. We will go take our chances.
The senior executives of ARCO had the judgment that they
would take the money, accrue for the day judgment, and that's
what we did.
That is what he said.
He said this:
I would not have been there in any capacity had I continued
to exercise the right they had given me to dissent to the
process during the suggestions stage.
I know colleagues are here on other matters. I just felt it was very
important to lay out the case against the Hutchison amendment. I will
lay it out again and again and again if I have to. I hope I don't have
to. I really could. I hope we can vote against cloture and hopefully
rid this bill of this special interest rider that helps the 5 percent
of the oil companies that are bad actors.
The 95 percent who are paying their fair share are doing fine; they
will not be impacted by the Interior Department. It is just that 5
percent.
This is an important debate. It is not a baseless debate. It is
debate on behalf of the hard-working taxpayers. It is a debate on
behalf of everyone who pays rent or a mortgage payment every month.
Imagine one day waking up and saying to the bank: Guess what. I don't
like my mortgage payment. I'm paying less because it is no longer the
fair market value as the day I signed up.
I think the bank would say: Renegotiating the interest rate is fine;
but if you don't pay your fair share, we are taking you to court and we
will repossess your house.
We cannot allow the top 5 percent of oil companies to act in an
irresponsible fashion. I hope my colleagues will join with me, Senator
Durbin, Senator Feingold, Senator Wellstone, Senator Murray, and many
other Senators who feel very strongly about this and vote down the
Hutchison amendment.
I ask unanimous consent the pertinent letters be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Executive Office of the President, Office of Management
and Budget,
Washington, DC, June 24, 1999.
Hon. Ted Stevens,
Chairman, Committee on Appropriations, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The purpose of this letter is to provide
the Administration's views on the Interior and Related
Agencies Appropriation Bill, FY 2000, as reported by the
Senate Subcommittee. As the Committee develops its version of
the bill, your consideration of the Administration's views
would be appreciated. These views are necessarily preliminary
because they are based on incomplete information, since the
Administration has not had the opportunity to review the
draft bill and report language.
The allocation of discretionary resources available to the
Senate under the Congressional Budget Resolution is simply
inadequate to make the necessary investments that our
citizens need and expect. The President's FY 2000 Budget
proposes levels of discretionary spending that meet such
needs while conforming to the Bipartisan Budget Agreement by
making savings proposals in mandatory and other programs
available to help finance this spending. Congress has
approved, and the President has signed into law, nearly $29
billion of such offsets in appropriations legislation since
1995. The Administration urges the Congress to consider such
proposals as the FY 2000 appropriations process moves
forward. In addition, we urge the Committee to reduce
unrequested funding for programs and projects in this bill.
The Administration appreciates efforts by the Committee to
accommodate certain of the President's priorities within the
302(b) allocations. However, it is our understanding that the
Committee bill makes major reductions to critical requests
for the President's Lands Legacy Initiative and for key
tribal programs. We also understand that the bill may include
a number of environmental provisions that would be
objectionable to the Administration--and would likely not be
approved by Congress, if considered on their own. We strongly
urge the Committee to keep the bill free of extraneous
provisions and to address the following issues:
Lands Legacy Initiative/Land and Water Conservation Fund
(LWCF). The Administration strongly opposes the
Subcommittee's decision not to fund major portions of the
President's Lands Legacy Initiative. Overall, only $265
million (33 percent) of the $797 million requested in this
bill for the Initiative would be funded. The bill would
provide no funding for State conservation grants and planning
assistance, and only a portion (11 percent) of the requested
increase for the Cooperative Endangered Species Conservation
Fund. It would also make significant cuts in State and
Private Forestry grants. Federal land acquisition funding
would be cut by more than half from the Lands Legacy request,
from $413 million to $198 million. It would be short-sighted
to gut this important environmental initiative, given the
growing bipartisan recognition of the need for the federal
government, the states and the private sector to protect open
spaces and preserve America's great places.
Land Management Operations. The Administration commends the
action of the Subcommittee to address the operational and
maintenance needs of land management agencies in Interior and
USDA. The Administration is concerned, however, with cuts in
key conservation programs. For example, the bill would reduce
requests for the Fish and Wildlife Service's endangered
species program by $13 million (12 percent) and the Forest
Service forest research program by $48 million (25 percent).
Increased funding for key programs within the Forest Service
operating program, such as wildlife and fisheries habitat and
rangeland management, could be offset with reductions in
unrequested and excessive funding for timber sale preparation
and management.
Environmental and Other Objectionable Riders. The
Administration strongly objects to objectionable
environmental and other riders. Such riders rarely receive
the level of congressional and public review required of
[[Page S10569]]
authorization language, and they often override existing
environmental and natural resource protections, tribal
sovereignty, or impose unjustified micro-management
restrictions on agency activities. We urge the Committee to
oppose such provisions. For example, the Administration would
strongly oppose an amendment that may be offered that would
prohibit implementation of the oil valuation rule. Such a
prohibition would cost the American taxpayer about $60
million in FY2000.
Millennium Initiative to Save America's Treasures. The
Administration strongly objects to the lack of funding for
this $30 million Presidential initiative to commemorate the
Millennium by preserving the Nation's historic sites and
cultural artifacts that are America's treasures.
National Endowment for the Arts/National Endowment for the
Humanities. The Administration strongly objects to the
proposed funding levels for the National Endowment for the
Arts and National Endowment for the Humanities. The
Subcommittee's proposed $51 million (34 percent) reduction
from the request would preclude NEA from moving forward with
its Challenge America initiative which emphasizes arts
education and access to under-served communities across
America. The $38 million (25 percent) reduction from the
request would preclude NEH from expanding its summer seminar
series to provide professional development opportunities to
our nation's teachers as well as broadening the outreach of
its humanities programs. The Administration urges the
Committee to approve funding for the Endowments at the
requested levels.
* * * * *
____
The Secretary of the Interior,
Washington, DC, June 30, 1999.
Hon. Ted Stevens,
Chairman, Committee on Appropriations, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I write to express my grave concern over
the Interior and Related Agencies Appropriations Bill for FY
2000 reported by the Committee on Appropriations Bill for FY
2000 reported by the Committee on Appropriations. If the bill
were presented to the President as it was reported from the
Committee, I would recommend that the President veto the
bill.
The bill contains a number of objectionable legislative
provisions, three of which I'd like to highlight. The
amendment on mill sites adopted by the Committee permanently
extends the Mining Law's existing near-giveaway of Federal
lands to include as much acreage as a mining company thinks
it can use for mountains of mine waste and spoil. The
amendment further tilts the Mining Law against the interests
of the taxpayer and the environment, ignoring the need for
comprehensive reform.
The extension of the moratorium on issuance of new rules on
oil valuation will delay these rules for an additional 21
months. Revision of the way royalties are collected is
urgently needed to assure the taxpayer a fair return.
Extension of the moratorium cuts off the dialogue on how best
to do this and will needlessly cost the taxpayers about $120
million in lost royalty payments.
It is also my understanding that the Committee adopted an
amendment that could limit the implementation of the
President's June 3 Energy Efficiency Executive Order to
reduce Federal energy costs. Restricting the agencies'
ability to improve energy efficiency in our buildings will
prevent the Federal Government from saving taxpayer dollars,
cutting dependence on foreign oil, protecting the environment
through improved air quality and lower greenhouse gas
emissions, and expanding markets for renewable energy
technologies.
Although I appreciate your efforts in re-working the
discretionary spending allocations in order to increase the
spending limits for the Interior bill in the face of the
limitations placed on you under the Budget Resolution, the
funding amount proposed by the Senate denies funding to
protect America's open spaces and great places for the future
through the President's Lands Legacy initiative, as well as
critical requests for land management, trust reform, other
Indian programs, and science.
Overall, the reductions to the budget request seriously
impair the Department's ability to be a responsible steward
of the Nation's natural and cultural resources and to uphold
our trust responsibilities to Indians. The 2000 budget sets a
course for the new millennium providing resources that are
needed to accommodate increasing demand and use of our public
lands and resources. In this decade, visits to parks, refuges
and public lands have increased up to 31 percent; the number
of students in BIA schools has increased 33 percent; and the
BIA service population is up by 26 percent.
In this regard, the Committee proposal does not provide
sufficient increases to fully operate our National Parks,
restore healthy public lands, rebuild wildlife and fisheries
resources, clean up streams in support of the Clean Water
Action Plan through Abandoned Mine Land grants, or improve
the safety of schools and communities for Indians. At the
funding level provided, we will be unable to meet the needs
expressed by Congress for better stewardship of public lands
and facilities, resolution of the Indian trust issue, and
improved schools and quality of life in Indian Country.
Further, the Committee eliminated funding for the Save
America's Treasures program that preserves priority historic
preservation projects of national scope and significance.
I urge you to reconsider the contents of the Interior bill
and work with the Administration and me towards a more
balanced approach. I look forward to working with you to
address these concerns.
Sincerely,
Bruce Babbit.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, I believe the matter before the Senate now
is the amendment of Senator Robb, and I ask consent of the Senator from
California that her presentation, including all of her questions and
answers, be included in the Congressional Record immediately after the
speeches of Senators Hutchison and Domenici so that the debate on that
subject be continuous, and that other speeches during the course of the
evening be consolidated in the Record on the Hutchison amendment.
Mrs. BOXER. I thank my friend for his excellent idea. We should keep
this debate seamless.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. Second, I have a unanimous consent agreement under which
there will be two votes on the Bond amendment and a vote on the Robb
amendment tomorrow morning that apparently have been cleared.
Before I present that, I say we will be in session long enough this
evening for anyone who wishes to do so to speak on the Bond amendment.
I believe the Senator from Illinois wishes to speak. The Senator from
Missouri (Mr. Bond) may return for that subject. Senator Hutchison
wishes to speak again on her amendment. There may be other speeches on
that. There are three or four people here to speak on the Robb
amendment. I want all of the speeches on each of these subjects to be
consolidated into one point in the Record.
This unanimous consent agreement is not going to limit anyone's right
to talk on any of these subjects this evening as long as they wish.
Mrs. BOXER. If the Senator will yield for a question, what is my
friend's plan of action on the Hutchison amendment?
Mr. GORTON. I believe a cloture motion on the Hutchison amendment
will be filed tomorrow to ripen sometime early next week. There will be
lots of time for a discussion of that amendment before any vote on
cloture takes place.
I hope during most of tomorrow, however, we will deal with other
amendments that can be completed and dispensed with. By the time we get
to a vote on the cloture, we are pretty close to the end of debate on
this bill. I don't know if that is true or not. We will have dealt
today in whole or in part with 4 of the 66 amendments that are reserved
for the Interior appropriations bill. I trust some will go faster than
many of those today.
I will state the unanimous consent agreement. Then I intend to speak
briefly on the Robb amendment. I believe the Presiding Officer and
Senator Craig will also speak on that.
Unanimous Consent Agreement
Mr. GORTON. I ask unanimous consent that immediately following the
vote scheduled at 9:30 a.m. on Thursday, notwithstanding rule XXII, the
Senate resume consideration of the Interior appropriations bill and
there be 2 minutes equally divided prior to a vote in relation to the
Bond amendment No. 1621; following that vote, there will be 2 minutes
equally divided on the pending Robb amendment No. 1583. I ask unanimous
consent no amendments be in order prior to these votes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. In light of this agreement, I am able to announce for the
majority leader that there will be no further votes today but that
there will be three votes at 9:30 tomorrow morning and immediately
thereafter.
I will speak to the Robb amendment.
Mr. DURBIN. Will the Senator from Washington be kind enough to yield
for a unanimous consent request so we can make a record of the sequence
of speakers?
I have been here for a while but other Senators have, too. I want to
speak to the Bond amendment and I certainly yield to the chair of the
subcommittee for his comments on the Robb amendment.
Is it appropriate to ask unanimous consent that after the Senator
from
[[Page S10570]]
Washington completes his remarks, I be given no more than 10 minutes to
respond to the Robb amendment?
Mr. GORTON. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1583
Mr. GORTON. Mr. President, with respect to the Robb amendment which
would strike section 329 of the bill before the Senate, perhaps the
best way to begin my remarks on it is to read that relatively short
section.
It reads as follows:
For fiscal year 2000, the Secretary of Agriculture with
respect to lands within the National Forest Service and the
Secretary of the Interior with respect to lands under the
jurisdiction of the Bureau of Land Management, shall use the
best available scientific and commercial data in amending or
revising resource management plans for offering sales,
issuing leases, or otherwise authorizing or undertaking
management activities on lands under their respective
jurisdictions provided that the Secretaries may at their
discretion determine whether any information concerning
wildlife resources shall be collected prior to approving any
such plan, sale, lease, or other activity and, if so, the
type of collection procedures for such information.
It seems to me there are fundamentally three subjects involved in
section 329. The first is, of course, that it applies only to fiscal
year 2000, the year covered by this appropriations bill. The second
subject is that the two Secretaries managing these national lands shall
use the best available scientific and commercial data in dealing with
the plans they have for those lands. I can't imagine that there is any
objection on the part of the proponents of this current amendment to
that language. The third subject says that the Secretaries may, at
their discretion, determine whether any additional information
concerning wildlife resources shall be collected prior to approving
these plans.
In other words, section 329 doesn't require these Secretaries to do
anything. It simply grants them the discretion to act in a reasonable
fashion.
A number of court decisions, pursuant both to the National Forest
Management Act and perhaps even more significantly to forest plans
already prepared by this Clinton administration and under the
supervision of these Secretaries, have stated essentially that before
any contract is entered with a private organization for the harvest of
timber in national forests or on Bureau of Land Management lands, an
extraordinarily expensive wildlife census must be taken, a census at
least as detailed as the census of the people of the United States to
be taken next year--on reflection, a census much more elaborate than
the census of the people of the United States next year, as we are
going to be asked to spend about $4 billion to count every person in
the United States.
The cost of carrying out the activities required by our courts on our
national forests, if we go forward, would be somewhere between $5
billion and perhaps $9 billion. These are matters that deal simply with
endangered species. We already have injunctions and orders for the
Federal Government with respect to protecting endangered species and
not allowing them to be harmed by any of these commercial
activities. These are, in effect, censuses of everything that exists in
the forest, vertebrate and invertebrate, plant and animal species --
the entire works. There are, of course, other decisions on the other
side of this issue. Section 329 attempts to deal reasonably with these
requirements.
The very groups that brought these actions, various environmental
groups, have made two arguments over the course of the last 10 or 12
years that perhaps predominate over the balance of their arguments. The
first is that we should stop engaging in timber sales in which the
Federal Government--either the Forest Service or the Bureau of Land
Management--lose money; that below-cost timber sales are not a wise
investment of the resources of the United States of America. At the
same time, of course, they advocate positions, and have succeeded in
front of some courts with those positions, the net result of which will
be that there can never be a timber sale that is not below cost. The
cost of any one of these surveys on any public lands will exceed the
value of the timber located on the land. That, of course, in turn, is
in pursuit of the second goal of many of these environmental
organizations, specifically including the Sierra Club, and that goal is
that there should be no harvest, no harvest under any circumstances, on
any of our public lands of any of our timber resources. That is a
formal position of many of the environmental organizations including
those that have been plaintiffs in this litigation.
The net result of these decisions is the success of that latter
policy. The United States of America is not going to spend $9 billion,
or $5 billion, engaging in these particular surveys. It is not a
provident expenditure of our money. There is no money in this
appropriations bill for such elaborate courses of action under any set
of circumstances.
As a former head of the Forest Service under President Clinton, Jack
Ward Thomas said: This whole idea is designed to make this survey and
management system unworkable. Scientists are not looking for these
creatures in the first place. The Clinton forest plan, which has
reduced by about 80 percent harvests on the public lands--in the
Pacific Northwest, in any event, it already set aside 84 percent of our
national forests essentially as wildlife refuges. The other 16 percent
has been considered by this administration for a harvest in the Pacific
Northwest of about 1 billion board feet a year. This was the
President's forest plan, his promise in his campaign in 1992 to the
people of the Northwest, somewhere between one-fifth and one-sixth of
what was the historic harvest.
The President has not been able to keep that promise, even using his
administration's present forest policies. He has not reached that
particular goal. The harvest under these decisions will be zero because
the cost of preparing the sales will simply be too great.
This is not a policy--the policy of the present enjoined forms of
wildlife surveys--that comes from an administration that has been hell-
bent for leather to harvest trees in the forests either in the Pacific
Northwest or in the Southeast, the location of the 11th Circuit, by any
stretch of the imagination. Nor is this discretion being given to
officials in the Department of Agriculture and the Department of the
Interior who are bound and determined to cut the last tree. This, I
want to repeat, is a 1-year provision--that is to say it will apply
only through most of the rest of the Clinton administration--granting
discretion to the Secretary of the Interior, Mr. Babbitt, and the
Secretary of Agriculture, to use their present relatively reasonable
systems of determining whether or not some small portions of the 16
percent of the national forests not set aside for wildlife purposes can
be the subject of timber harvesting contracts. It does not require the
administration to follow exactly the procedures it has been following
with the Northwest forest plan and its plans for other forests at all.
It simply says if in their discretion they think they have done enough,
they can go ahead and meet their own very modest goals of at least
providing a modest harvest of our timber in our national forests. That
is all. It is neither more nor less than that. It is not a mandate. It
is authority to very green, very pro-environmentalist Departments of
Agriculture and Interior to engage in activities of this nature.
It is very clear the goal of these lawsuits and the goal of the
organizations that have brought these lawsuits is not to get these
surveys done. The goal is to see to it that the cost of entering into
preparing for any contract for the harvest of timber is so high that
none of them will be worth doing. But the effects of those lawsuits,
and therefore the effects of this amendment, do not apply only to
timber harvesting contracts by any stretch of the imagination. They
will apply to any new or different use of any portion of our national
forests and of our BLM lands. They will apply equally to the building
of campsites or the improvement of campsites or other recreational uses
of the forest system itself. As a consequence, the effect of these
present lawsuits is to make de facto wilderness areas out of all of our
national forest areas and to prohibit any improvement for human
recreation, other than that allowed of wilderness areas itself, as well
as of any timber harvest. It is an extraordinary set of policies that
are essentially advocated by the Robb
[[Page S10571]]
amendment, a set of policies based on the proposition from some
national environmental organizations that there should be no productive
use, no economically productive use, of our national forest system
whatsoever.
The section 329, which really should not have been contested at all,
is simply to grant this Clinton administration, for 1 year, the right
to go ahead with the extremely environmentally sensitive forest plans
that it has structured during the course of the last 6 years, not only
in the Northwest part of the United States but in the Southeast part of
the United States and Texas and in every other place, either BLM lands
or Forest Service lands, and allows them to go ahead. If the President
does not want them to go ahead, if the policies are those advocated by
these organizations in these lawsuits, nothing in this section 329
prohibits them from adopting those policies. But what it does require
is that it will require the President to say: Whatever I told the
people of the Northwest, whatever I told the people of other parts of
the country about a balance, about the proposition that there were
certainly some of our national forests that were appropriate for
productive use, for the provision of jobs and for the provision of
timber resources of the United States, I now have changed my mind. We
are not going to do it at all.
If he wants that as a policy, it is not barred by section 329. But he
will not be able to hide behind a court decision and say he is trying
to do something and trying to abide by a court decision that is
impossible, that sets conditions that are impossible economically to
meet. We are not going to spend the amount of money necessary to
conduct these surveys. The surveys are not needed. They are not worth
it. We either choose to deal reasonably with these issues and allow
this President and this administration to conduct the modest harvests
that they have thought were appropriate, or we are saying we are not
going to have any harvest at all, and in all probability we aren't
going to have any new recreational activities on our national forests
as well.
Simply stated, that is the issue: Do we trust this administration not
to go overboard in the nature of harvesting, do we believe this
administration to be environmentally oriented or not?
Most of us, and I think I speak for the Presiding Officer as well as
myself, do not think these forest plans are appropriately balanced as
they are, but they do provide for some economically productive use of
our forests, a productive use that is totally barred under these
certain court decisions, whether they are correct or not correct, and
which we allow the administration to politely and courteously either
abide by or say no, we have a better and more balanced way of doing it.
I think it is overwhelmingly appropriate to reject this amendment, to
trust this administration not to go overboard in timber harvests by any
stretch of the imagination, and to allow it to keep the promises it has
made for a period of more than 6 years to the people of timber-
dependent communities all over the United States of America.
The PRESIDING OFFICER. The Senator from Illinois is recognized for 10
minutes.
Amendment No. 1621
Mr. DURBIN. I thank the Chair for recognition. I misspoke earlier. I
wish to speak to the Bond amendment, not the Robb amendment.
The Bond amendment is another one of these legislative riders on
spending bills. It is an attempt to change environmental policy with an
amendment to the appropriations bill for the Department of the
Interior. The reason it is being done this way, of course, is it avoids
any committee hearing, any opportunity for any witnesses or public
input.
There are seven, eight, or nine different environmental riders that
have been attached to this spending bill. The administration has
indicated that unless they are removed, there is a strong likelihood
that an otherwise good bill will be vetoed by the President because
riders, such as the one I am about to address, go way too far.
One might wonder why I am addressing the issue of a national forest
in Missouri since I represent the State of Illinois. I am from
downstate Illinois. I was born in East St. Louis, and the Ozarks are an
important recreational area for everyone who lives in the region. It is
not only a regional treasure but a national treasure which has been
recognized by a designation as a national forest.
Last year, the attorney general of Missouri, Jay Nixon, joined
environmental groups in petitioning the Secretary of the Interior
asking him under his authority, under the Federal Land Policy and
Management Act, to remove from access to mining 400,000 acres in the
Mark Twain National Forest.
Those of us who live in that region know this is an especially
popular area of the Ozarks. The watersheds of the Current, Jacks Fork,
and Eleven Point Rivers are in this region. Many of my friends and
family go to the Ozarks for canoeing. They love it because of its
pristine beauty, and they believe the attorney general, Jay Nixon, was
correct when he petitioned the Secretary of the Interior to preserve
this area and to stop it from being used for lead mining.
This is Federal public land that a private company, a lead mining
company, wants to come in and mine for profit. The Interior Department
has the authority to say no, it is important environmentally and we
should not allow this kind of commercial use. That is what they would
do were it not for the amendment being offered by the Senator from
Missouri.
The Senator from Missouri, Mr. Bond, wants to remove the authority of
the Department of the Interior to protect the Mark Twain National
Forest from lead mining. Is this a popular concept? It probably is with
some companies. Not only the attorney general of Missouri but the
Governor of Missouri has written protesting this action being taken by
this Bond amendment.
Governor Mel Carnahan from Jefferson City, MO, has written and said:
I believe you will agree the watersheds of the Current,
Jacks Fork and Eleven Point rivers are among the most
beautiful and pristine areas of Missouri. These crystal clear
streams are great recreational assets which should be
protected for future generations to enjoy.
He goes on to say:
The environmental risk of lead mining and potential for
toxic contamination of these pristine waterways are well
understood. The Interior Secretary's authority to
protect sensitive public lands should be preserved.
He says to my colleague from Missouri:
I respectfully request you withdraw your amendment.
But that amendment has not been withdrawn. It will be voted on
tomorrow.
I can say further there are groups across Missouri that oppose this
invasion of a pristine area, a watershed of the Mark Twain National
Forest, for the purpose of lead mining. The St. Louis Post Dispatch,
the largest newspaper in the State, has editorialized against this and
has said, frankly, that this is an effort to allow this company to come
in and mine an area which is of critical importance to the people of
Missouri.
The Kansas City Star, an equally influential paper, has come to the
same conclusion that the Bond amendment is a mistake, a mistake which
threatens the watersheds of the crystal clear streams of the Current,
Jacks Fork, and Eleven Point Rivers.
For those who believe this lead mining operation is somehow
antiseptic and will not leave a legacy, I say they are wrong, and the
scientific studies have proven that. We know what is going to happen if
we allow these companies to come in and mine lead in this beautiful
area. We know the potential for contaminating the streams. We know the
potential for leaving behind the waste from their mining operations.
Some might argue that it is worth it because it creates jobs, and yet
study after study reaches the opposite conclusion.
This is primarily a tourist area, a recreational area recognized all
around the Midwest. To defile it with lead mining to create a handful
of jobs for mining purposes is to jeopardize the attraction of this
area for literally thousands of people in the Midwest and across the
Nation. That is why it is such a serious mistake. I daresay if this
amendment had been offered on an ordinary bill, there would have been a
long line of people to come in and testify, not only environmentalists
who
[[Page S10572]]
oppose the Bond amendment, but certainly those who are in authority in
the State of Missouri, Governor Mel Carnahan, Attorney General Jay
Nixon, as well as many other groups of ordinary citizens who believe
this is a national treasure that should not be defiled so one company
can make a profit.
On the spending bill for the Department of the Interior, this is
another one of the environmental riders designed to benefit a private
interest at the expense of American taxpayers who own this public land,
at the expense of families who enjoy this recreational area, at the
expense of people who look forward to a weekend on the Current River
because of its beauty.
Frankly, this is a big mistake, and I hope the Senator from Missouri
will have second thoughts before he calls it up for a vote tomorrow
morning. I hope he will listen carefully to the leaders in the State,
as well as the environmental groups, who are standing up for one of the
most precious resources in Missouri.
I hope he will join them in saying the Mark Twain National Forest and
the watershed of these great rivers are worth protecting, worth
preserving, and should not be allowed to be invaded by a lead mining
company that wants to come in and mine on Federal public lands at the
expense of this great national resource.
Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER (Mr. Gorton). The Senator from Oregon.
Mr. SMITH of Oregon. Mr. President, I rise in opposition to the
motion to strike Section 329 of the Interior appropriations bill. This
section is necessary to counter an extremely adverse ruling by the
Eleventh Circuit Court of Appeals, which has just been described by my
colleagues, as well as a preliminary injunction recently handed down by
Judge Dwyer in the U.S. District Court.
The case before Judge Dwyer involves the implementation of the
Clinton-Gore Northwest Forest Plan, which was unveiled in 1993. At the
time, President Clinton said that it ``provides an innovative approach
for forest management to protect the environment and to produce a
predictable and sustainable level of timber sales.''
The real travesty here is that the supporters of Section 329 are
trying to fulfill the commitments made by this Administration in 1993,
and we are now doing so over the objection of the Administration.
The Northwest Forest Plan was supposed to be the Clinton
Administration's historic compromise between timber harvesting and the
environment. For National Forests covered by the Plan, timber harvests
were reduced by 80 percent. Apparently, that wasn't enough for those
who want no timber harvests, because they are again challenging
implementation of the Plan in Court.
While Judge Dwyer issued a preliminary injunction against the sales
directly challenged in the case, the effect of his August 2, 1999,
ruling is much broader.
The Forest Service and the Bureau of Land Management have made a
decision not to award any previously-auctioned sales until the lawsuit
is resolved. Further, the agencies do not plan to offer any additional
sales until their supplemental EIS on survey and manage is completed
and approved.
While the Forest Service claims this will be completed by February of
2000, history tells us that this EIS will be appealed and litigated. In
fact, the Forest Service hasn't produced a region-wide EIS for the
Northwest for 10 years that hasn't been litigated.
The current or planned sales affected by Judge Dwyer's ruling contain
about 500 million board feet of timber. Since there will be no future
sales until the EIS is completed, the total volume affected could be 3
times that high.
Further, because many of these sales have already been awarded, if
they are enjoined and operations are delayed, or if the government is
forced to cancel these sales, the government will be potentially liable
for hundreds of millions of dollars in damages.
Because so little volume has been sold to date, and is therefore
available to purchasers, the injunction of this volume will lead to
immediate mill closures, increasing the government's liability for
damages.
The issue in this case involves the Administration's implementation
of one part of the Clinton-Gore Forest Plan, concerning surveys for 77
rare species of fungi, lichens, mosses, snails, and slugs, and for a
small mammal called the red-tree vole. Six years into the 10-year plan,
the agencies still do not know how to conduct surveys for 32 of the
rare species.
None of these species is threatened or endangered. Although these
surveys are only one piece of the Plan, the consequences of the case
are potentially enormous.
The real fallacy of the survey and manage requirement is that we are
only going to survey on those lands where ground-disturbing
activities--such as recreational improvements and timber sales--are
planned. In the National Forests covered by the President's Plan, this
amounts to about 12 percent of the total forest base that is still
available for multiple use.
This is not going to tell us about the overall health of these
species, since we aren't going to be looking for these species in the
remaining 88 percent of the land base.
Unfortunately, it could also apply to needed forest restoration
activities such as prescribed burns and reforestation on other selected
parts of the forests, thereby delaying these activities and increasing
their costs.
It is unfortunate that the Clinton-Gore Administration ever included
this provision in the Northwest Forest Plan.
But having done so, it is a travesty that the Administration's
failure to effectively implement the plan has resulted in another
injunction that will further erode our timber communities.
With respect to the Eleventh Circuit Court of Appeals ruling, it
requires surveys for all ground-disturbing activities.
This means not only timber sales, but recreation improvements and
forest management activities. Some preliminary cost estimates put the
nationwide implementation of the Eleventh Circuit court ruling at $9
billion. It is a Trojan horse rolled in by candidate Clinton to destroy
an industry.
Therefore, we should make the public policy decision that we will
allow forest managers to use the best available commercial data in
amending or revising resource management plans, as Section 329
stipulates.
This is the standard for data under the Endangered Species Act.
The language in Section 329 does not preclude the Secretaries of the
Interior and Agriculture from gathering additional data.
It simply gives the Secretaries more discretion to meet land
management objectives in a timely manner.
Section 329 is designed to give the Clinton administration officials
exactly the flexibility in land management that they argued for in
court.
I am deeply saddened that in the face of the economic crisis about to
be visited on my constituents, the President isn't 100 percent behind
retaining this language.
This isn't an agonizing choice for me at all. If I have to choose
here between surveying for red tree voles or keeping hundreds of
Oregonians employed in family-wage jobs, I will vote for families.
I know that there are those who don't think the language in Section
329 is the best language possible.
I will commit to work with my colleagues and the Administration to
see if we can improve this language. But I will strongly oppose efforts
to strike it.
I urge anyone who has a National Forest in their State to support
retention of Section 329.
If the Eleventh Circuit Court ruling is ever applied nationwide, we
will have tied the hands of professional land managers with an
expensive, time-consuming and ineffective requirement.
I believe my colleague from Virginia has the best of motives, but I
only wish he could go with me to rural Oregon and see the human
consequences of what he proposes.
I began my political career in 1992 running for a rural seat in the
Oregon State Senate. It was the same election year that now-President
Bill Clinton sought the Presidency. I watched as an opponent of his
campaign with admiration for the skill with which he came to my State
and reached out to those in the rural communities and made some very
dramatic promises, some promises which he said would protect
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the environment and ensure a sustainable harvest of timber.
He carried my State. He carried your State, Mr. President, with these
same promises because a lot of people wanted to believe in him.
I have noted with great interest that recently the President --and I
applaud him for this--has gone to rural Appalachia. I don't know
whether he went to parts of the State of the Senator from Virginia. I
know he went to West Virginia, and he decried poverty levels that are
lamentable and awful. But there are parts of my State as a result of
his forest policies which are in worse shape than those he visited in
Appalachia.
I rise today with a lot of emotion in my heart because I think the
truth has not been told and promises have not been carried out.
I have recently come from a town hall meeting in Roseburg, OR, where
people are finally looking at oblivion because their jobs are directly
dependent upon the sales that have now been enjoined by Judge Dwyer in
the district court of the Ninth Circuit.
I hope I can reach the heart of every one of my colleagues because
this stuff matters in human terms. I wish they would have a more honest
approach and say: We don't want any more harvest of timber; let's shut
it all down. At least that would be honest. This isn't.
I wish they could see the kids in John Day, OR, who go to school 4
days a week because they can't afford to open the school for 5. I want
my colleagues to understand what they are voting for. If you distill
this down, this is about pitting a survey of fungus, snails, and slugs
against children and families who need streets and schools.
Now, lest you think the last pine tree in Oregon is about to go down,
I am sorry to disabuse you. You can't stop timber from growing in my
State. We went to the CRP area not far from where I live. There are
wheat fields that formerly were in wheat that were left to go to
nature, and there are Ponderosa trees going up everywhere. They are 12
feet high now.
I know what the New York Times says. I know what the Washington Post
says. But like some of my colleagues, they have never been to my State.
They have never looked into the eyes of the schoolchildren who,
frankly, don't have an adequate education because the Federal
Government made promises to them and their county officials and their
school officials that are being denied to them in a very dishonest and
disingenuous way.
I am angry. It is not right. It is not right to go win an election
and then supposedly put up a program that is to provide for the
environment, to provide a sustainable yield, and then through
subterfuge make sure it doesn't happen, when you have a year to go in
your term, when you are decrying poverty elsewhere in this country, but
you are creating it in my backyard.
I don't think the Senator from Virginia would offer this motion to
strike if he could go with me to Roseburg, OR. It has been a long time,
has been a lot of heartache, a lot of pain, but it is getting old. It
is almost over. Here you and I are defending the President's plan,
trying to help him live up to his promises. I want the American people
to know that the Clinton-Gore forest plan, at the beginning at least,
was honest enough to say: The traditional harvest you have had, we are
going to cut it by 80 percent, by 80 percent. The reality is, it is not
even 10 percent of what is delivered, and now what we are seeing is
there is going to be nothing delivered.
That isn't right. A sustainable yield of 20 percent is all that was
promised, and yet even that apparently is another mirage.
Well, I know the President wishes we didn't have to do a rider, but
it is the only tool left because we are running out of time. Your
proposal is for a year to allow the Federal courts to allow these sales
to go forward. Without the Clinton-Gore forest plan, these sales would
be fine; these meet the Endangered Species Act, but somehow in the
creation of this plan, they have put in a survey system that isn't
economical. It isn't going to happen. It isn't even necessary. It is a
fraud. It is a way to undermine their own promises.
Well, history tells us this is not going to happen now. I regret to
tell the people of rural Oregon that the Clinton forest plan is a
failure to them.
Another irony. I heard my colleague from Virginia say he read a
letter from the Forest Service about their new-found position on this
issue. Why didn't they argue that in court? If it was an argument to be
made a month ago, why isn't it still a good argument. They have
reversed course. Why? Is it only about politics? I think people are
sick of that. I think people are ready to be told the truth, and they
thought they had been told the truth by the President, at least when it
came to his forest plan. I regret to tell them that apparently they
have not been.
What is at stake? In Judge Dwyer's ruling, about 500 million board
feet of timber. By the way, to my colleagues on the other side, if you
think by killing the forest industry in this country you are somehow
saving the environment, you are the best friend the Canadians and the
New Zealanders have ever had because the U.S. demand and use of timber
is not going down. It is going up. We have just exported those jobs. So
we pat ourselves on the back that we somehow have taken care of our
forests, even though it is growing at record rates and subject to
catastrophic fire. Even though we pat ourselves on the back, we are
pillaging our neighbors' land.
I am simply saying, the promise of the President to have a
sustainable harvest and a good environment are possible, but it isn't
possible with this. We are trying to help the President make it
possible.
I am saying what is being asked for by the courts now, as required by
the Clinton-Gore forest plan, is a survey for 77 rare species of fungi,
lichens, mosses, snails, slugs, and for a small mammal called the red
tree vole. Well, the agencies don't know how to conduct these things.
They don't even know some of these species. The amount of land that is
at issue is 12 percent of 100 percent of the land, so 88 percent of the
land is not going to be surveyed, only the area where they are digging
around. No one contends that any of these things are endangered at all.
What is endangered is rural people, creating a new Appalachia with
chronic poverty. We are doing it in my State while he decries it in his
State. That isn't right, not when they have been promised something
better.
I conclude my remarks by pleading with my colleagues not to put in an
artificial requirement that we will not fund, which is not necessary
and which can be adequately provided for, by the way you described it,
by giving to the Secretaries of the Interior and Agriculture the power
to do what they already do under the Endangered Species Act, by giving
them that power and allowing these things to go forward and keeping
some promises. Why don't we keep some promises around here?
I want my colleagues to know this is about a survey versus families.
It is about snails and slugs versus streets and schools. I ask you to
oppose the motion to strike this amendment. What is being done here is
wrong. It has human consequences, and we in this Senate ought to be
bigger than that.
Mr. President, I yield the floor.
Mr. BURNS addressed the Chair.
The PRESIDING OFFICER (Mr. Brownback). The Senator from Montana is
recognized.
Mr. BURNS. Mr. President, I listened with interest to the impassioned
plea of my friend from Oregon. Last week, we sold a lumber mill in
Montana. Darby Lumber went down because they could not get logs. Mills
are hauling logs in from Canada, 500 miles, and it is like my friend
from Oregon said--we are decimating our neighbors' lands because we
have not had the nerve to be honest with the American people.
To give you an idea, up in the northwestern part of Montana, we are
growing about 120 million board feet of lumber a year. The Forest
Service makes plans to harvest about 19 million board feet. The truth
is, America, we will be lucky if we harvest 6 million board feet.
Opposition to section 329 flatly contradicts previous positions taken
by the environmental community and this administration on the best
methods for protecting wildlife. Section 329 would restore to the
administration the authority to plan and account for wildlife
protection by surveying habitat--a method employed for over two decades
and that has been approved by seven Federal courts, including three
circuit
[[Page S10574]]
courts of appeal. The recent Eleventh Circuit decision contradicted
this consensus judicial opinion and would require the agency to provide
protection to wildlife by counting--not once but twice--the number of
members of each of 20 to 40 management indicator and sensitive species
before undertaking any ground-disturbing activities in our national
forests--be it timber harvesting, be it watershed restoration, be it
trail building, be it maintenance, or be it for the prevention of fire.
I guess this is one reason you can't run a pretty good ranch or a
pretty good farm that depends on renewable resources by a committee,
for the difference of opinion on how we should do things. If left to
that, we would never get in a crop. America would never have a
substantial, sustaining supply of food.
The emphasis the Forest Service has placed on habitat availability
instead of counting the members of individual species is exactly the
policy advocated by the environmental community. I wonder, at this time
when they change the policy, what is the motive here? What is the
motive? Is it us against them? I don't think so. I don't know of
anybody who stands in this body to decimate the environment. But I
wonder, of all the fires that are burning in the West today, if a
little management on fuel buildup could not have prevented some of
those. But somebody thought a mouse was too important that we can't
disturb the land, and it burns.
Virtually every environmental organization has insisted the law be
reformed to address habitat protection and away from narrow species-by-
species focus. Indeed, the provision in the Endangered Species Act that
the environmentalists most frequently quote in both the Senate and the
House, and in Federal courtrooms across the country, is the first
phrase in the statement of purpose in section 2(b):
The purposes of this Act are to provide a means whereby
ecosystems upon which endangered species and threatened
species depend may be preserved.
Now, we can argue on philosophy, but I think we are arguing on
politics, and what is at stake is families. Also, what is at stake is
the forest itself. I invite the Senator from Virginia to go with me
this weekend. I will take him up in the Yak, where we have infestation
of the pine beetle, dying trees, and a forest that would just shock
him. It would absolutely shock him to his shoes. He would be
devastated, looking at that forest. Yet the environmental community has
made up its mind that we are not going to harvest; we are going to let
it burn. I don't think that is why the Senator from Virginia wore the
uniform as long as he did, to protect that kind of mismanagement of the
country he so loves, or even the people he so loves.
The administration has been even more adamant in insisting on a
habitat approach to wildlife protection. That is what they told us when
they first came to office. It has championed two land management
concepts--ecosystem management and biological diversity protection--
that rely entirely on methodologies which concentrate on habitat rather
than individual species. Certainly, ecosystem management is a fancy way
of saying habitat management. I don't have very many of those fancy
words; I have to write them down.
But it is funny what you can see from horseback. Sometimes you can
see over tall mountains and tall buildings and over very high-minded
ideas that don't work. They have never worked; they never will work.
So, too, when biological diversity is considered, conservation
biologists insist on treating habitat as the source of wildlife and
plant diversity and resist focusing on individual species. They have
always done that.
We have embraced that philosophy and that approach. That means we can
do something about managing our land in the highest standard of
environmental protection and still harvest the crop with which the God
above has so blessed this country.
Finally, the capstone of this administration's wildlife policy is the
habitat conservation planning and incidental take, permitting it is
conducting with private landowners helping them provide habitat for
endangered species.
How can a man stand here and even talk about endangered species when
you have only one crop that you get paid once a year for and you see
wolves killing right out of your own pasture not 300 feet away from
where you live? And there is not a thing you can do about it.
Does anyone want to go out and face that man and tell him and his
family, well, we have some folks that like to hear that yipping and
howling? After they get done with their kill, they will go across the
creek, which is only about 400 yards, and they will lay there and they
will rest until they get hungry again. That is almost unbelievable to
me.
That is what we are talking about here. We are talking about
something that doesn't work. We are talking about people who are very
smart and very intelligent but have little or no wisdom--higher than
thee, elitist--who prevent men and women who were born of the soil,
born of the land, worked the land, and will die and go back to the
land. I guess one could say we are all just circling the brink because
that is where we are going to go. Maybe you never know how that is
going to turn out.
Despite the solid momentum away from attention to single species and
toward consideration of habitats, we now see the very advocates of this
approach criticizing it in their attacks on section 329. I wonder how
they will feel when they are successful in stripping 329 from the bill
only to discover that the U.S. Forest Service--one of the first
agencies to adopt a habitat approach to wildlife protection--must now
abandon it to follow the expensive--in fact, it is too expensive. We
know that the money will never be appropriated. So it will not be done.
It is an outdated process of counting individual members of one species
after another, like I said, not once but twice. I am just asking that
we have an attack of common sense--just common sense, everyday common
sense that the rest of America uses every day just to subsist.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, I come to the floor to visit with my
colleague from Virginia who has offered an amendment to strike section
329 of the Interior appropriations bill. I am pleased that he is on the
floor. I am extremely pleased that he listened with great attention to
the Senator from Oregon and the Senator from Montana, and that he will
listen to this Senator from Idaho whose State is 63 percent owned by
the Federal Government and whose policy as to how those lands are
managed is determined on the floor of the Senate by this Senator, the
Senator from Virginia, and others.
I listened to the Senator this afternoon as he offered his amendment
to strike section 329. I must tell you that I listened with a degree of
frustration, certainly in no disrespect to the Senator, but to what I
sensed was a lack of understanding of what has brought us to this issue
and why the Appropriations Committee found it necessary at this moment
in time to speak out and to clarify public policy that the Senator from
Virginia is trying to undo.
The Senator from Montana, the Senator from Oregon, myself, and others
from large public land and forest States have grown tremendously
frustrated not by just this administration but by public policy that
puts all of us at odds. That arguably does not provide the kind of
environmental protection many of us would like and that would allow the
balance between environmental protection and under that important
umbrella the effective use or utilization of our resources like timber.
So we had a judge in the Eleventh Circuit who probably really has
never been West, nor does he understand the West, make a ruling on a
ground-disturbing activity of the Forest Service on its lands and say
that you haven't studied thoroughly enough how that activity
contributes to the demise of a plant, a fungus, a slug, a snail, or an
exotic animal. This judge went against decades of science, and even
nine court decisions that had largely said the Forest Service was doing
an adequate job in its overview of the endangered species
responsibility under the Endangered Species Act through an
environmental impact study.
The Senator from Oregon was talking about the judge's decision in the
Eleventh Circuit being picked up by the
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judge in the Ninth Circuit, and without any real consideration, just
arbitrarily spreading across the pages of his decision: Well, if it is
good enough in the Eleventh Circuit, it is good enough in the Ninth.
Ironically, in the Ninth Circuit, what the Senator from Oregon was
talking about was the most comprehensive, above the level of science
that has been practiced, reviewed, and mandated under the President's
own forest plan. There was a comprehensive effort between the Forest
Service and U.S. Fish and Wildlife Service and National Marine
Fisheries that all aspects of the disturbance would be studied before
these timber sales or other activities would go on.
As a result of that, I think it is tremendously important for the
Senator from Virginia to understand--I serve on the Appropriations
Committee--we did not attempt to do anything extraordinary. We just
tried to say in public policy that what the judge in the Eleventh
Circuit had done, what the judge in the Ninth Circuit was doing, and
what a judge in Texas has already picked up on is really outside
science.
A committee of scientists empowered by this Secretary of Agriculture,
Dan Glickman, just this last year reported back to the Department of
Agriculture and to the U.S. Forest Service that the science they were
using that the judge in the Eleventh Circuit knocked down was the right
science--that you use indicator species, that you didn't need to get
out on the ground and count every plant, or animal, or microorganism.
It was unnecessary to do this to determine the kind of impact that a
``Ground disturbing activity'' would have on the ground. But it was
very important for the state of the science involved to use the
indicator species concept that had been used and upheld in nine
different court decisions as the right approach.
I guess what I am saying to the Senator from Virginia tonight is how
long do we fight? How long do we see this kind of conflict that stops
all kinds of activity before the Senator from Virginia is willing to
stand up with the Senator from Idaho and do what is our responsibility,
and that is crafting sound public policy that disallows the courts and
the judges from being the public land managers of our States.
Yet the Senator from Virginia tonight says: I want the judge to
decide.
But he didn't really quite say it that way, and it would be unfair.
What he is saying is, let the process continue to go forward.
I am extremely disappointed that the chief of the Forest Service is
not in the gallery tonight saying to the Senator from Virginia: You
shouldn't be doing this.
What the Senator from Washington, Mr. Gorton, put in this legislation
allows the Forest Service to continue to do what the courts and a team
of scientists said is the right thing to do: That is, when you are
doing these surveys use the appropriate science, the indicator species,
in making the determination as to how to mitigate for a surface-
disturbing activity. However, the chief of the Forest Service isn't
here tonight nor was he willing to stand up and speak out loudly.
What this administration I think is saying, and I trust that it has
to be as reasonably disturbing to the Senator from Virginia as it is to
this Senator from Idaho, is continue to work through the court process.
We think we can work this out.
Ironically enough, their working it out means they have already lost
3 lawsuits, they have already lost 3 times. They are still saying:
Trust us, we know how to work it out.
Even the forest plan that the President himself staked his public
land reputation on is in the tank out in Oregon, Washington and
northern California. Thousands of people will be out of work this
winter because this President wouldn't stand up and ask his chief of
the Forest Service to fight for what he originally said he thought was
right.
He says: Let us work through the court process.
How long will it take? We don't know. A year, until after the next
election? Possibly.
What is most important for the Senator from Virginia to understand is
that what is in 329 is not outside the law. Let me read the language:
The Bureau of Land Management and U.S. Forest Service shall
use the best available science and commercial data in
amending and revising resource management plans for and
offering sales, issue leases or otherwise authorizing or
undertaking management activities on, land under their
respective jurisdiction.
Where does the language come from? Not out of the mind of the Senator
from Washington who is the chairman of the Interior appropriations
subcommittee. It comes out of endangered species law. It comes out of
the act itself. It is the operative language that drives the Endangered
Species Act. It is not new language. It is not new law.
Then we go on to say,
Provided that the Secretaries may at their discretion
determine whether any additional information concerning
wildlife resources shall be collected prior to approving any
such plan, sales, lease or activities.
Full discretion to the secretary, to the managing agency. Not new
law. Empowering them to do the right thing with their scientists and
their expertise. That is what we are doing. We are empowering Bill
Clinton. We are empowering Mike Dombeck, the chief of the Forest
Service. Yet they are saying, just work this out through the courts.
What if they lose the fourth time and it is a year from now and nobody
is in the mills and nobody is working and thousands of people are out
of work in Oregon, Washington and northern California?
Or should we talk for just a few moments about the activities on the
George Washington and the Jefferson National Forests in the home State
of the Senator from Virginia? Not much timbering in his home State, but
there is a lot of ``people'' activity, a lot of trails, a lot of
management and road building. Flood control in the Cascade National
Recreation Area, a contract involved with repair and construction of
four bridges and relocation of portions of the trail and stone
structures and retaining walls. All of it is surface-disturbing
activity; all of it because someone didn't like it, a lawsuit is filed,
and a judge stops it because the Forest Service doesn't know how to do
these kind of things.
No, not at all. Because the Forest Service didn't examine whether
repairing an old trail wall disturbs a lichen or a moss on the wall of
stone that was originally put there by man himself. That doesn't make
much sense, does it? But that is exactly what striking section 329 will
do.
I wish the Senator could stand up and say let's abide by science,
let's not play this out in the courts anymore. Let's empower the chief
of the Forest Service and the assistant secretary of agriculture and
the President himself. I don't find myself on the floor of the United
States very often defending this President. I don't think he has had
good public land policy. But in one area where he really tried, now he
himself will not even defend his effort. His chief of the Forest
Service is trying to avoid the pressure by environmental groups who see
this exactly the way the Senator from Oregon spoke to it this evening:
A way to turn the forest off.
They will not only stop logging, they will turn your forests off.
They will attack any surface-disturbing activity, even if it is a
trail, a trail head, or a campground that may facilitate the very
citizens of the State of Virginia who enjoy their public lands and
their two national forests.
As the Senator from Virginia knows, in the mid-1970s we passed the
National Forest Management Act. That was to direct the most
comprehensive review of every forest in the United States. From that
was to come a management plan and a way to execute that plan. The
Senator from Virginia knows as do I that he and I and the taxpayers
spent nearly a quarter of a billion dollars developing those plans. It
was the most comprehensive land-planning exercise in the history of the
world. We developed computer models. We looked at every aspect, every
watershed, all of the character and the nature of this public land. It
was right that we did so. Our forests now operate under those plans.
Every activity was viewed through a grid that determines whether they
are endangering a species of any kind. That is what I spoke to a few
moments ago. However, that whole effort cost a quarter of a billion
dollars, or near that.
What the amendment of the Senator would do, and if the courts were to
win--not the policy makers that we
[[Page S10576]]
were elected to be, but a judge, an appointed judge who does not know
one thing about the forests in Oregon or Idaho because he is reviewing
an activity in a forest in the State of Georgia, he is saying get out
there on your hands and knees with as many scientists as you can muster
and count and look at every little tidbit.
The Senator from Oregon went through that litany of mosses, snails
and critters tonight. It is estimated, just estimated, that to do that
kind of an evaluation on an acre-by-acre basis across the landscape of
the public forests of our country would cost 5, 8, or $9 billion
dollars. The Senator from Virginia knows, as do I, we will not
appropriate that money. That kind of money doesn't exist and that kind
of money should never be spent on this kind of activity. The scientists
who are good scientists--not judges, and not environmentalists who want
to see the world shut down--are saying that the standards and the tests
and the indicator species and the work that is being done today is
thorough, adequate and responsible. Yet the amendment of the Senator
denies that because that is the exact language that was put in this
section of the appropriations bill.
Why is it important we do it now? We heard from the Senator from
Oregon. I have been to John Day and I have been to Roseburg. Those are
mill towns. Those are little communities with millions of acres of
public timber land around them. The people who live there make their
livelihood from logging. It has changed some because logging has
diminished dramatically in those areas.
But what the action of the Senator from Virginia is doing, if he is
successful, is it turns off those timber sales, nearly 500 million
board feet of timber that would keep those mills operating through the
winter and into the spring. Because no longer do we operate on a 3-year
pipeline, they call it, where you have timber adequate in the pipeline
for a 3-year period. That ended with the Clinton administration. Now we
are on nearly a timber sale by timber sale basis.
Yet, remember the reduction in timber sales that the Senator from
Oregon talked about? We are not talking about cutting anywhere near
previous levels. We have an 80 percent lower cut in 8 years. And even
that which this President said was adequate, right, responsible and
environmentally sound, a judge now arbitrarily has taken away. So that
is why we are on the floor this evening. This is one of the most time
sensitive amendments, directly relating to jobs and people's well-
being, that is in this legislation.
Let me close by one other analysis. I was in one of my communities,
Grangeville, Idaho County, Idaho, a big county right in the heart of my
State, with 70-plus percent, 80 percent public lands. In one of those
communities they started their school year with no hot lunch program.
Why? Because a huge portion of their budget came from timber sales, the
Twenty-Five Percent Fund. The Senator may be familiar with it. For
every tree that is cut, the counties and the schools got 25 percent of
the stumpage fee. We are not cutting trees in that area anymore, even
though there are millions of acres of trees there. As a result, the
school had to decide whether to have an athletic program or hot lunch
program for the kids. They are struggling, taking donations from the
community to have hot lunches. I don't know whether that's happening
anywhere in Virginia, taking donations to have a hot lunch program to
feed kids. But the Senator's amendment has an impact on that kind of
caring event.
I wanted to personalize this because I don't think, when the
amendment to strike came to the floor, there was an understanding of
the immediacy of the impact of this kind of decision. It was just some
neat environmental vote that we would have because that is what a lot
of the environmental community wants. This is a test vote of some kind.
It is not a test vote on anything other than a political idea. It
does not bear out consistently good policy because we have good policy
in this area. We have scientists from around the world saying we do it
better than anyplace else. Yet a judge simply said no, you don't. You
don't do it the way I think it should be done, and therefore I want you
to do it differently.
That is the crux of the debate. There are all kinds of opinions
around it. But I must say, to an administration that has three times
lost this battle in court, for them to step up now and say, trust us,
let's work it out, without an alternative plan, with the idea we will
work it out and get to the point and they lose another lawsuit and we
are 12 months down the road and the people in Roseburg or John Day are
not back to work?
It is not impacting my State at this moment. But here is what happens
in my State. It is like a West Virginia-Virginia relationship. If they
are not cutting trees in Oregon, even under the President's plan, and
these mills are deprived of trees and people are out of work, that mill
operator comes into Idaho looking for timber sales. He bids up the
price well beyond where it ought to be, takes a timber sale out of
Idaho, puts those logs on a truck and heads them west over the Cascades
into Oregon just to keep his people working.
So my mill in Orofino, or a place like that, is with less timber at a
time when we are hardly cutting any timber. And we have simply pitted
one against another. That is not good policy either. But ultimately
that is what can happen and that is what will happen in my State, even
though this judge's decision at this moment does not impact us.
But failing Congress' ability to establish and clarify this policy
issue, some group will file a lawsuit and argue on the premise of the
judge from the eleventh and the judge from the ninth circuit, that
those kinds of effective studies were not done on a given disturbing
activity in my State. Then it will apply further into my State.
Those are the issues. I hope our colleagues are listening tonight. I
understand we will debate this tomorrow some, but we will vote on it.
To reiterate, I oppose the amendment by Senator Robb that would
remove Section 329 of the Interior Appropriations bill. This effort is
misguided and I strongly urge my colleagues to understand the need for
this Section if our national forests are going to continue to function.
The Section simply clarifies that despite recent circuit and district
court decisions, the Secretaries of Agriculture and Interior maintain
the discretion to implement current regulations as they have been doing
for nearly 2 decades.
During the past two decades, nine separate court decisions have
backed the way the Forest Service has been conducting their surveying
populations by inventorying habitat and analyzing existing population
data.
On February 18, 1999, the Eleventh Circuit Court of Appeals
determined that the Forest Service must conduct forest-wide wildlife
population surveys on all proposed, endangered, threatened, sensitive,
and management indicator species in order to prepare or revise national
forest plans and on all ``ground disturbing activity''--not just timber
sales. Never before has such an extensive, and frankly impossible,
standard been set by the courts.
Another ruling on August 2, 1999, in Federal District Court in
Seattle, on a similar case, jeopardizes the President's Northwest
Forest Plan, and has already begun to stop most if not all ground
disturbing activity in the Northwest.
These rulings result in paralysis by analysis. It would require the
Forest Service to examine every square inch of the project area and
count every animal and plant--even every insect--before it approved any
activity.
The cost to carry out such extensive studies--studies which have
never been required before--could be approximately 9 billion dollars.
How do we do this? Because the Forest Service does contract for
population inventorying on occasion. A population trend survey requires
two studies. If we extrapolate from the $8,000 cost of one plant
inventory, we reach $38.1 million for the 864,000 acres within the
Chattahoochee National Forest where this decision originated. If
applied to the 188-million acre national forest system, the cost
reaches $8.3 billion.
We appropriate roughly $70 million for forest inventory and
monitoring. Are we prepared to shift the $9 billion necessary for this
new standard? If not, this recent interpretation forces the Forest
Service to shut down until the Agency can apply the new standard.
The purpose of Section 329 is not to change the court decisions or
set a
[[Page S10577]]
new, lower standard. It is simply to clarify that the existing
regulation gives the discretion to the Forest Service and the BLM when
determining what kind of surveys are needed when management activities
are being considered.
Some of my colleagues would argue that this is an issue for the
authorizing committees to deal with. I agree. This is an issue that
absolutely should be dealt with by those committees. They need to
determine whether the agencies have been correctly interpreting their
regulation for the past 17 years. They need to determine whether it is
sufficient to inventory habitat, rely on existing population, consult
with state and federal agencies and conduct population inventories only
for specific reasons.
But I argue that the appropriations process should not be made to
bear the burden while the authorizing committees study the question.
All section 329 does is to preserve, for the next year, the status quo
as it existed on April 8, 1999. Otherwise, our already limited
resources will be further overwhelmed if we are required to fund this
new standard.
I urge you to oppose this amendment and support sensible management.
We are appropriating roughly $70 million for forest inventory
monitoring this year. There is only $70 million in the Federal budget.
Yet it is now estimated that this will literally cost us billions of
dollars if the Senator from Virginia and the Senator from Idaho cannot
stand up and look some of our radical friends in the eye and say: That
is not good policy. You are not the policymaker and your lawsuits and
your judges are not either. We are. We were elected to craft policy.
The Senator from Virginia and I are responsible only if we take that
kind of leadership position.
That is the kind of leadership position that Senator Gorton took in
the appropriations bill. He did not go outside the law and he did not
go outside practice. He mandated and requested the Forest Service of
the United States act responsibly, under the Endangered Species Act,
and gave them the guidelines to do so. That is what section 329 does.
That is leadership. Falling back into the arms of the judge and
simply seeking the will of the courts is not. I hope my colleagues
would join with me tomorrow and oppose a motion to strike.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ROBB. Mr. President, first let me address my colleague and friend
from Idaho, who is one of the four Senators who have spoken against
this amendment on the floor and tell him first of all I appreciate the
sincerity of his remarks and the concern he shows, and his colleagues
have shown, for those who face economic hardship because of any
decision that might be impacted by the Federal Government. I would have
to say in particular, with respect to the distinguished Senator from
Oregon talking about some of the people in communities which he has
visited, the same phenomena has occurred to all of us at one time or
another. All of us truly feel the intense pain that those families
suffer. In many cases that suffering comes to them because of
activities that have been taken in terms of Federal trade policy,
sometimes because of innovation in various manufacturing techniques,
modernization of equipment--lots of reasons that long and established
communities are adversely affected. Any of us who do not relate to that
and have a sense of compassion--we may disagree on a particular item at
a particular time, about what is the best way to approach a particular
challenge that we face, but I don't think any of us lack compassion for
those families or want to be in a position where we are doing anything
that hurts more than helps. In this particular instance, I would have
to say one of the comments made by my friend from Oregon was ``let
science decide.'' That is really what is at issue here.
We see the issue differently. But in this particular case, science
has determined at this point, and the board of scientists the
distinguished Senator referred to has suggested, that there are means
of establishing the health of the forest that will require indicator
species measurement. None of the decisions require counting all
species, every single species. In fact, the only species I am aware of
that is measured in terms of every single member of the species is the
Condor count. That is a truly endangered species. I know of no other.
There may be.
In any event, we are talking about doing something. The reason these
cases were decided the way they were and other cases were decided
differently is because the rules that had been established, the plan
that had been established by the Forest Service, and that they had
agreed to follow, wasn't followed.
The Northwest forest plan came about in very large part because of
the timber wars, the very difficult situation that every Member of the
Northwest delegation of this body remembers.
As a result of the compromise that was entered into, opened up some
logging--I recognize the 80-percent factor the Senator from Idaho and
others have used--at least some logging was conducted and the gridlock
that had existed prior to that time did not continue. They have been
operating under this provision, the Northwest Forest Plan since that
time.
I have heard repeated references to costs that are clearly beyond
anything anyone associated with the Forest Service, BLM, the Interior
Department, or the Agriculture Department would consider possible, or
can even understand frankly, because we have claims of $5 billion to $9
billion, and no one in the administration is talking about anything
that would cost anything in that range.
The essence of the court decisions were on a very limited scope. The
court said, if you tell us that this is the plan you want to put into
effect, that you agree to put into effect, then the least you ought to
do is try to follow that plan.
The problem in the Eleventh Circuit, if my memory serves me
correctly, was with 32 of the 37 species, absolutely nothing was done.
The court is in the position of saying, we will give great deference to
the Forest Service, to other administrative agencies, to regulators, to
anyone else who is involved, but you cannot simply do nothing and
expect us to simply say it is OK not to pay attention to your own rules
and regulations.
That is what both of the cases are about, and that is what
distinguishes the cases which trouble the Senators from the Northwest
from the other cases.
In the other cases, the judge was able to rule in such a way that the
logging could continue, whatever land disturbing operations could
continue. We are not talking about a situation where every single
species, some of which none of us could identify if we were given a
chart of all the species involved because they are so rare, had to be
counted. That is what indicator species are for, to simply be able to
track in some limited way some species as an indication of how all the
species are faring under various changes that might affect those
particular forests or those particular areas. That is really all we are
saying.
In this particular case, the Forest Service, BLM, the Interior
Department, the Department of Agriculture, and the heads of those
agencies have said that section 329 is likely to cost a great deal more
money, is not likely to do exactly what they purport to address but
have exactly the opposite effect.
In this particular case, the Agriculture Department, the Interior
Department, the BLM, and the Forest Service make it very clear that
what is proposed is more likely to be counterproductive, but that is
beside the point. They are acknowledging that a standard has been
recognized by the Eleventh Circuit case and that they did not meet that
standard. They believe they should be held to the standard, and that is
what they are prepared to do. That is what adaptive management practice
is all about. This is not the kind of absolute foreclosure that my
friends on the other side have represented it as.
Plans are underway right now to address the challenges that were put
to the management agencies by both decisions. I submit the concern for
the Ninth Circuit case is considerably greater on the part of my
friends from the northwestern part of the United States than the
Eleventh Circuit.
[[Page S10578]]
Nonetheless, the decisions simply said to the Federal agency
involved: If you say these are the rules that you are going to follow
and you agree these are the rules that should be followed, and the
scientific community has said this is the way we can make the rational
assessments and achieve the kind of balance that we are looking for,
then you ought to do that.
I share the frustration. There is always an enormous frustration
factor when you are dealing with a situation that seems to be beyond
the control of those who are most affected by it. I am particularly
sensitive to the State of Idaho where so much of the land is owned by
the Federal Government, owned by the people of the United States, and
that makes this forum for decisionmaking so much more important, in
many cases, than it is for other States where the percentage of our
total land, the percentage of our total economic activity is less
affected by decisions that are made right in this particular Chamber.
The bottom line again is simply if the agency agrees to a particular
course of action, if the action is rational, and reflects the fact we
are not using the forest just as a place where logging can be carried
out, but where recreational and other environmental elements are
valued, then that one activity must be balanced against the others.
In this particular case, a rational approach has been devised. It is
flexible. It is being addressed at this particular moment. An
additional environmental impact statement is in the process of
preparation.
The only real change that will come about from where the law is now,
the only real change is whether or not the public ought to have an
opportunity to participate and comment on the process. That is the only
real change that would be brought about by this particular rider, other
than attempting to legislate on an appropriations bill, thus bypassing
the administration, regardless of what party is in power, and bypassing
the legislative process, bypassing the authorizing committee to which
these arguments could be addressed.
I am not at all insensitive to the concerns that have been raised by
my colleagues who represent this particular area. Indeed, I want to
work with them and the Forest Service, the BLM, the Interior
Department, and the Agriculture Department to see if we cannot find
ways to address the specific problems that those communities,
particularly those that have no other opportunity for economic
activity, are faced with at this particular time.
The way to do it is not to put an environmental rider on an Interior
appropriations bill which bypasses the Federal administrative process,
bypasses the legislative process, and simply attempts to write into law
something that has not been approved by either section and which is,
indeed, actively opposed by representatives for both.
Mr. President, I see no one else who I believe wishes to address this
particular matter. We will have an opportunity to provide closing
arguments tomorrow before this is taken up.
I do not believe we have asked for the yeas and nays. I request the
yeas and nays.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. ENZI. Mr. President, I rise in opposition to this amendment and
to express my concerns regarding the increased bureaucratic burden it
would place on the backs of America's rural communities. This amendment
would require the Forest Service to conduct forest-wide wildlife
population surveys on all proposed, endangered, threatened, sensitive,
and management indicator species in order to prepare or revise national
forest plans, and in every area of each national forest that would be
disturbed by a timber sale or any other management activity. Such a
requirement would put a virtual freeze on all Forest Service activities
and would serve as a death knell for rural economies.
For more than fifteen years, the Federal Government has been at war
over how to manage our Western lands. The result has been 15 years of
gridlock that not only locks up public lands and threatens the health
of our national forests, but it also locks up rural economies which
have suffered from dramatic economic disruption.
Economies in rural communities are not like economies in more urban
settings. Rural economies cannot make the kind of rapid adjustments
that are available to more populated areas. When a timber company of
about 50 people goes out of business in rural America, even though its
number of employees may seem small under urban standards, those fifty
employees can make up 20 to 30 percent or more of the local work force.
Just as important, however, is the impact that this kind of amendment
will have on the future of forest health. The biggest threat facing
America's forests today is the overriding threat of destruction by
catastrophic wildfire. This threat is particularly strong in the West
where our nation receives very little annual rainfall.
Without a proactive forest health program that thins out the ever
increasing vegetation from our forest floors, we are only setting
ourselves up for disaster.
Haven't we learned anything from the debate over the Wilson Bridge?
When local communities decided to improve the Wilson Bridge along the
infamous Washington Beltway they learned near the end of their process
that they had to go back and complete a full blown EIS. Because of this
regulatory requirement, the Wilson Bridge now will not be built for
another two or three years. In the meantime, traffic will continue to
back up and it will take longer and longer to navigate around our
nation's capitol. This kind of regulatory gridlock never used to happen
on the East Coast, but it has been a common occurrence in the West. I
can guarantee you, however, that these kinds of regulatory activities
will continue until we receive regulatory relief and learn that
increased regulation does not necessarily mean we are protecting the
environment.
If we are seriously going to protect our environment, we need less
regulation and more proactive programs particularly on our national
forests. The worst thing we could do, then, is add to the gridlock and
adopt this kind of amendment.
Mr. CLELAND. Mr. President, I rise today to voice my support for and
cosponsorship of Senator Robb's amendment to remove the Section 329
rider from the Interior Appropriations bill. This rider would undermine
sound science in wildlife management in my state and across the nation.
It would suspend U.S. Forest Service and Bureau of Land Management
requirements to research and monitor certain wildlife populations,
integral requirements that the agencies themselves adopted as early as
1982. I strongly support this amendment and believe that we should
remove this rider.
Section 329 attempts to overturn a recent court case, Sierra Club
versus Martin, issued by the 11th Circuit, which confirmed the
agencies' duties to monitor certain wildlife species in order to make
credible and well-informed management decisions. The 11th District
Court unanimously ruled that the Forest Service was not properly
performing its responsibilities to inventory ``rare'' species in the
Chattahoochee and Oconee National Forests as mandated by its own Forest
Management Plan. The court's decision does not expand monitoring
requirements, but merely ruled that the absolute failure to collect any
data or implement any monitoring of indicator and sensitive species was
not legal.
Monitoring the health of ``indicator'' and ``sensitive'' species is
both sound science and good wildlife management. Indicator species act
as proxies for other wildlife in the forest. That is why monitoring of
indicator species was included in the 1982 implementing regulations of
the National Forest Management Act and is included as an integral part
of forest management plans adopted by the agencies. If we ignore what
is happening to these ``indicators,'' we are ignoring the impacts on
the whole forest. Collecting new and important data is the only way to
ensure that our land mangers are using the most up-to-date and accurate
scientific information. By limiting decisions to ``available'' science
as this rider would dictate, Section 329 turns a blind eye to the
information we need to make the best possible management decisions.
I understand that some argue the best ``available'' definition is the
same
[[Page S10579]]
rigid standard set forth by the Endangered Species Act. While true,
this is a complete misrepresentation of the law's intent. The intent of
best ``available'' information for Endangered Species is to encourage
swift listings of animals so that we avoid risking the extinction of
such animals. Associating this definition with determining the status
of animals in a National Forest section scheduled for timber harvesting
runs completely contrary to the intent of the Endangered Species Act
version which is to protect species. Applying this definition when
making forest management decisions risks the habitat and future of both
``sensitive'' and ``endangered'' species by not having accurate and
current data upon which to make these decisions. Each forest manager
will be without guidance and our national lands will be managed
according to the whims of individuals rather than the interests of the
public.
In my own state of Georgia, National Forests provide a refuge for
black bear, migratory songbirds, native brook trout, and an incredible
diversity of aquatic species. Some of these species are already listed
under the federal Endangered Species Act. Many more may be listed in
the future if we ignore the warning signs. The smart, economical
approach is to monitor and conserve ``sensitive'' species before they
reach a crisis state and are listed on the endangered species list. By
avoiding such listings, we have the maximum amount of flexibility and
the costs of conservation are low. Unfortunately, Section 329
discourages land managers from doing just that.
I understand that, in reaction to the court decision, the regional
forester for the Chattahoochee and Oconee National Forests is amending
its forest management plan and this rider completely short circuits
that process. Amending the Forest Management Plan is the proper method
for handling these kinds of issues. It allows for Public Comment and
Participation and also allows for Sound Science to be utilized and
reviewed. The Forest Service has stated that this rider, ``Overrides a
Federal Court Ruling, agency regulations, and resource management plans
that require the Forest Service and Bureau of Land Management to obtain
and use current and appropriate information for wildlife and other
resources before conducting planning and management activities.'' Note
the language that resource management plans require the agencies to
obtain and use current and appropriate information. It does not say,
see what data you can scrounge up and use that.
Considering the Senate's recent debate on Rule 16, it is clear that
this rider is attempting to legislate on an Appropriations bill. I
believe that contentious authorizing language such as this should have
the benefit of a full review by the authorizing Committee which has
jurisdiction over these matters. These important decisions should not
be done through an environmental rider on an appropriations bill.
In closing, it is clear that the Forest Service's own National Forest
Management Act regulations require monitoring of certain, but not all,
resident wildlife to ensure that land managers are using the most up-
to-date and accurate scientific information in their decisions. Now, I
understand that every single species of plant and animal cannot and
should not be documented in these inventories. However, I believe that
in order to protect species from becoming threatened and endangered,
the Forest Service must employ effective measuring techniques which
will provide accurate estimates. These estimates are critical to making
sound management decision. I believe that this rider short circuits
both the Senate's ability to provide proper oversight and the Forest
Service's process for amending forest management plans.
I urge my colleagues to remove this rider and vote in favor of this
amendment. I thank my colleagues and yield the floor.
Mr. ROBB. Mr. President, seeing my friend from Texas on the floor,
knowing that she has plans to address another of the pending
amendments, I yield the floor.
Mrs. HUTCHISON addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Privilege Of The Floor
Mrs. HUTCHISON. I do intend to address the issue of my amendment, but
first I ask unanimous consent that privileges of the floor be granted
to William Eby during the pendency of the Interior appropriations bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1603
Mrs. HUTCHISON. Mr. President, as was unanimously consented to
earlier in the evening, Senator Gorton requested that all of the
arguments on the Hutchison amendment be put together. So I ask
unanimous consent that my remarks be put following the Boxer remarks on
the Hutchison amendment, which I think is the next in line, in order to
keep them in the same area so that they will follow along.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Mr. President, I do want to address some of the
issues and some of the facts that were misstated by the Senator from
California because I think it is very important that the Record be set
straight. I attempted to correct the Senator from California while she
was speaking, but she preferred to continue to speak, so I want the
Record to be very clear on some of these important facts.
First, the Senator from California and the Senator from Illinois made
much of the testimony of a former executive from Arco who had
testified, they said, under oath that oil companies had in fact
misstated and actually tried to hide the value of the oil and not pay
their fair share in oil royalties to the State of California and the
City of Long Beach.
In fact, I am very pleased that they brought that up because the case
has actually been settled just in the last couple weeks. In fact, the
Senators from California and Illinois mentioned that several oil
companies had settled because they, for whatever reason, did not want
to go forward with the costly litigation. But Exxon decided not to
settle, and the Arco employee did testify in the Exxon case, under
oath, that the oil companies were misstating the value of the royalties
they owed to the State and to the City of Long Beach.
This case went to a jury, a jury in California of 12 citizens. The
jury found that the Arco employee was not credible. The jury of his
peers determined that the Exxon Corporation had not cheated the
taxpayers of California or the City of Long Beach, and they threw out
that suit from Long Beach and the State of California. Exxon showed
that it had not undervalued its oil. This was a suit for $750 million.
So the Arco executive who testified under oath was in fact
discredited in the court, and the jury found that the Arco executive
was not persuasive. I say that because so much was made of it, as if
the case had gone the other way. But 12 citizens in California got
together and the jury verdict was in favor of Exxon.
But having said that, I have said from the very beginning that the
lawsuits are not an issue. If any oil company did not value correctly
under the present law or regulations, they ought to pay. So it has
never been an issue. You would think, from the rhetoric of the Senator
from the State of California, that this amendment had something to do
with companies not paying their fair share under the present law.
Nothing could be further from the truth.
In fact, what we are talking about is changing the valuation of oil
royalties. We are talking about unelected Department of Interior
employees, who have no accountability, usurping the rights of Congress
to set tax policy in this country and affect oil jobs to a huge extent.
The fact of the matter is, what we are trying to do with the
amendment, with the Hutchison-Domenici amendment, is we are saying we
want it to be fair, we want to continue the moratorium until the
Department of the Interior has a fair valuation that accedes to the
wishes of Congress, because Congress makes the laws. That is the
prerogative of Congress. That is the responsibility of Congress. And it
is further the responsibility of Congress to stand up when they
delegate authority to a Federal agency to make a rule and that Federal
agency does not do what Congress intended for it to do.
Only Congress can step forward and say: No, we did not intend to
raise oil royalty rates the way you intend to do it, so we are going to
put a moratorium on your rule until you do an oil royalty
[[Page S10580]]
rate that is simpler, fairer, will be right for the citizens of our
country and right for the oil industry that is very important to this
country. So that is what we are talking about today.
I did not like the tone of the rhetoric that ``oil is bad,'' that
``big oil is worse,'' that ``everything about oil companies is bad.'' I
thought I was back in the 1960s when it seemed that ``business was
bad.'' Well, business is people. Business is jobs. Business is people.
My heavens, why wouldn't we want business to be successful in America
so that we have jobs in America? Sometimes when I hear people talking
about the ``big bad oil companies,'' I think: Do you want more foreign
oil, more foreign jobs, rather than American jobs and American revenue?
I think we have a choice here. Those ``big bad oil companies'' are
the basis of the California teacher retirement system pension plan.
They are a very important part of the stability of retirement for
California teachers, and Texas teachers, for that matter, and probably
Illinois teachers as well, because the big oil companies have been a
stable source of dividends for maybe 100 years.
I don't know when the big oil companies first started, but they have
been good citizens for our country. They are the basis of pension plans
and retired people's security all over our country, and they do create
thousands of good jobs.
So I do not think we have to beat up on oil companies. They are part
of our economy and they are part of the security of our country. And,
oh, by the way, since 1953 they have paid more than $58 billion for the
right to drill on the people's land--$58 billion in oil royalty
payments.
If they did not pay their fair share, I want them to pay their fair
share. So talking about settlements and lawsuits is not really an
issue, even though a jury of their peers in California did find that
Exxon had not cheated in any way.
That isn't the issue. The issue is, we want them to pay. In order for
them to pay a fair share, they need to be able to know exactly what
they owe, and that is why we hope the MMS will simplify the regulation.
In fact, the MMS refuses to even abide by its own previous rulings. So
an oil company that is trying to do the right thing goes to a previous
ruling on how oil is valued in a particular place, in a particular way,
and the MMS says: No, we are not going to be bound by what we did in
another case.
That walks away from the value of precedent that is the hallmark of
our judicial system and the regulatory system in our country. In most
instances, the IRS most certainly abides by its previous rulings. They
give opinion letters that people can rely on so they can pay their fair
share of taxes. Courts set precedents with rulings every day so people
will know what the law is and what they must do to comply. Not the MMS.
They have one opinion here and one opinion there. Congress asked them
to make it simpler, and they have gone far beyond what Congress
intended. It is our responsibility to make sure they do what is right
for the taxpayers of America. That is what the Hutchison-Domenici
amendment will assure they do.
This is not an industry that has had an easy time in the last year
and a half. In fact, oil prices have been lower than ever in the
history of our country, adjusted for inflation, $7, $8 a barrel, a lot
of that because of the glut of imported oil on the market. We have lost
half a million jobs in the oil industry in the last 10 years. We are
importing 57 percent of the oil in our country. If we have bad oil
royalty principles, it also affects natural gas, which is the most
important substitute fuel in many of our coal burning areas. Natural
gas is much cleaner, better for the environment than coal. So when you
start tampering in a negative way with the oil royalty rates, you also
are going to affect the price and availability of natural gas, because
natural gas, of course, is a byproduct of drilling for oil. If you
discourage our American companies and our American people from being
able to get our own oil resources, you are also cutting back on our
supply of natural gas. That could be dangerous to our economy and
dangerous to the people who live in our country who depend on natural
gas to heat their homes.
I think it is important we put this in perspective. It is important
we look at what we are talking about. Senator Boxer said the new rule
would only affect 5 percent of the oil companies, and it would be just
the big oil companies. She said she supports small oil companies. Well,
I hope she will, because if she will, she will support the Hutchison-
Domenici amendment because it is the Hutchison-Domenici amendment that
will keep our small producers in business after the devastating effects
of low oil prices from the last year.
In fact, every single oil company is affected. There are 2,400
producers with Federal leases. Only 70 of them are not classified by
the SBA as small businesses. All 2,400 are opposed to this new rule
that will require them basically to pay taxes on their costs. The small
oil companies that the Senator said she would support are very opposed
to her position. They are for the Hutchison-Domenici amendment because
they don't want a new rule that would second-guess sales of oil at the
wellhead and make fuzzy exactly when the oil should be valued. They
don't want a new duty to market and incur the costs of marketing and
selling the product and bear the cost without any allowance. They are
very concerned about this.
If Senator Boxer believes that the small oil companies are against
the Hutchison amendment, I hope she will talk to them. They will assure
her that this is going to put one more chink in their ability to create
jobs and continue to drill oil and natural gas in our country, rather
than choosing to go overseas where it is much cheaper to do it and
where you don't have to pay as much as we pay in America.
I hope very much that she will reconsider, knowing that all of the
small companies are affected by this new ruling.
I will read from some of the letters of people and groups that are
supporting the Hutchison-Domenici amendment.
People for the USA writes:
Dear Senator Hutchison: We support your fight to simplify
the current royalty calculation system. On behalf of 30,000
grassroots members of People for the USA, I want to thank you
for your diligent efforts to bring common sense to royalty
calculations on Federal oil and gas leases. Energy Secretary
Bill Richardson has suggested that domestic oil field workers
look to opportunities overseas. Senator, an administration
that talks about kicking American resource producers out of
the country has a badly skewed set of priorities.
That is signed by Jeffrey Harris, Executive Director.
The National Black Chamber of Commerce writes:
Dear Senator Hutchison: The efforts of MMS are, indeed,
ludicrous. Collectively the national economy is booming and
the chief subject matter is ``tax reduction,'' not ``royalty
increase,'' which is a cute term for tax increase. What adds
salt to the wound is the fact that despite a booming economy
from a national perspective, the oil industry has not been so
fortunate and is on hard times. We need to come up with
vehicles that will stimulate this vital part of our economic
bloodstream, not further the damage.
That is signed by Harry Alford, President and CEO, National Black
Chamber of Commerce.
Citizens for a Sound Economy:
The 1999 Omnibus Appropriations Act included moratorium
language concerning a final crude oil valuation rule, with
the expectation that the Department of Interior and industry
would enter into meaningful negotiations in order to resolve
their differences. Unfortunately, more time is still needed
for government and industry to reach a mutually beneficial
compromise.
It is signed by Paul Beckner, President.
Citizens Against Government Waste:
Passage of this provision in the Interior Appropriations
bill will provide the time necessary for the MMS and the
industry to reach a fair and workable agreement on the rule
benefiting both sides.
It is signed by Council Nedd II, Director, Government Affairs,
Citizens Against Government Waste.
Frontiers of Freedom:
In a misleading letter dated July 21, 1999, detractors of
the Hutchison-Domenici amendment allege it will cost
taxpayers, school children, Native Americans and the
environment. That is not so. It is time to set the record
straight. This amendment does not alter the status quo at
all. This amendment says to Secretary Babbitt, spend no money
to finalize a crude oil valuation rule
[[Page S10581]]
until the Congress agrees with your proposed methodology
for defining value for royalty purposes.
That is signed by Grover Norquist, President, Americans for Tax
Reform; George Landrith, Executive Director for Frontiers of Freedom;
Patrick Burns, Director of Environmental Policy, Citizens for a Sound
Economy; Fred Smith, President Competitive Enterprise Institute; Al
Cors, Jr., Vice President for Government Affairs, National Taxpayers
Union; Jim Martin, President, 60 Plus; David Ridenour, National Center
for Public Policy Research; Adena Cook, Blue Ribbon Coalition; Bruce
Vincent, Alliance for America; Chuck Cushman, American Land Rights
Association; and Malcolm Wallop, Chairman of Frontiers of Freedom.
Mr. President, I ask unanimous consent that these letters be printed
in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
Frontiers of Freedom
Arlington, VA, July 30, 1999.
Re Supporting the Hutchison-Domenici Amendment (a Moratorium
on the Proposed Oil Valuation Rule which Prevents
Unauthorized Taxation and Lawmaking by the Department of
Interior).
Hon. Kay Bailey Hutchison,
United States Senate, Washington, DC 20510
Dear Senator Hutchison: We are writing to express our
support for the Hutchison-Domenici amendment to the FY 2000
Appropriations bill. The Hutchison-Domenici amendment
prevents the Department of the Interior from rewriting laws
and assessing additional taxes without the consent of the
Congress. This role properly rests with the legislative
branch, not with unelected bureaucrats.
In a misleading letter dated July 21, 1999, detractors of
the Hutchison-Domenici amendment allege it will cost
taxpayers, schoolchildren, native Americans, and the
environment.'' That is not so! It's time to set the record
straight--this amendment does not alter the status quo at
all. This amendment says to Secretary Babbitt: Spend no money
to finalize a crude oil valuation rule until the Congress
agrees with your proposed methodology for defining value for
royalty purposes.
We contend that a mineral lease is a contract, whether
issued by the United States or any other lessor, as such, its
terms may not be unilaterally changed just because a
government bureaucrat thinks more money can be squeezed from
the lesser by redefining the manner in which the value of
production is established. What royalty amount is due is
determined by the contracts and statues, and nothing else.
For seventy-nine years the federal government has lived
according to a law that established that the government
receives value at the well--not downstream after incremental
value is added. The bureaucrats at the Interior Department
are in effect imposing a value added tax through the
backdoor.
Bureaucrats are saying that value should be measured in
downstream markets hundreds of miles from one's lease, or
based upon prices set in futures trading on the New York
Mercantile Exchange, both of which routinely attribute higher
value than exists at the ``wellhead.'' If bureaucrats had it
their way, they would assess a tax all the way to the
gasoline, ignoring the costs associated with bringing oil to
that pump. If Congress intended this, they would have said so
in the law.
This is nothing short of a backdoor tax via an unlawful,
inequitable rulemaking which Secretary Babbitt says is
necessary because of ``changing oil markets.'' But, we think
his real result and that of his supporters such as Senator
Boxer, is to cripple the domestic petroleum industry, and
drive them to foreign shores and advance their goal of
reducing fossil fuel consumption. This is why they falsely
claim that green eyeshade accounts somehow are impacting the
environment.
The outcry on behalf of schoolchildren is particularly
hypocritical. Senator Boxer and Rep. George Miller are
responsible for a mineral leasing law amendment in the 1993
Omnibus Budget Reconciliation Act which reduces education
revenues to the State of California by over $1 million per
year--far more than the Department's oil valuation rule would
add to California's treasury (approximately $150,000 per year
as scored by the Congressional Budget Office). So really, who
is harming schoolchildren's education budgets? The oil
industry provides millions and millions of royalty dollars
each year for the U.S. Treasury and for State's coffers.
The ``cheating'' which Sen. Boxer and others allege is
unproven. Reference to settlements by oil companies as proof
of fraud is improper. When President Clinton settled the
Paula Jones lawsuit his attorney admonished Senator Boxer and
her fellow jurors to take no legal inference from that
payment. We agree. As such, oil company settlements cannot be
given precedential value. Who can fight the government
forever when the royalty dollars they have paid in are used
to fund enormous litigation budgets?
Lastly, two employees of the federal government who were
integral to the ``futures market pricing'' philosophy
espoused in the Department's rulemaking have been caught
accepting $350,000 checks from a private group with a stake
in the outcome of False Claims Act litigation against oil
companies. Ironically, the money to pay-off these two
individuals for their ``heroic'' actions while working as
federal employees came from a settlement by one oil company.
The Project on Governments Oversight (POGO) last fall
received well over one million dollars as a plaintiff in the
suit. Shortly thereafter POGO quietly ``thanked'' these
public servants for making this bounty possible. The Public
Integrity Section of the Department of Justice has an ongoing
investigation. We find it unconscionable the Administration
seeks to put the valuation rule into place without getting to
the bottom of this bribe first. The L.A. Times recently drew
a parallel with the Teapot Dome scandal of the 1920's, but
who is Albert Fall in this modern day scandal?
The Department's rule amounts to unfair taxation without
the representation which Members of Congress bring by passing
laws. If Congress chooses to change the mineral leasing laws
to prospectively modify the terms of a lease, so be it. It
should do so in the proper authorizing process with
opportunity for the public to be heard. A federal judge has
recently ruled the EPA has unconstitutionally encroached upon
the legislature's lawmaking authority when promulgating air
quality rules. We are convinced the Secretary of the
Interior, in a similar manner, is far exceeding his authority
unilaterally by assessing a value added tax.
Let Congress define the law on mineral royalties. We
elected Members to do this job, we didn't elect Bruce Babbitt
and a band of self-serving bureaucrats. Support the
Hutchison-Domenici amendment.
Sincerely,
George C. Landrith, Executive Director, Frontiers of
Freedom.
Patrick Burns, Director of Environmental Policy, Citizens
for a Sound Economy.
Fred L. Smith, Jr., President, Competitive Enterprise
Institute.
Al Cors, Jr., Vice President for Government Affairs,
National Taxpayers Union.
Jim Martin, President, 60 Plus.
Grover G. Norquist, President, Americans for Tax Reform.
Chuck Cushman, Executive Director, American Land Rights
Association.
Bruce Vincent, President, Alliance for America.
Adena Cook, Public Lands Director, Blue Ribbon Coalition.
David Ridenour, Vice President, National Center for
Public Policy Research.
____
Rio Grande Valley Partnership, International Chamber of
Commerce,
Weslaco, TX, July 23, 1999.
Hon. Kay Bailey Hutchison,
U.S. Senate, Washington, DC.
Dear Senator Hutchison: On behalf of the Board of Directors
of the Rio Grande Valley Partnership, I want to thank you
once again for your leadership to prevent the Minerals
Management Service on the U.S. Department of Interior from
finalizing its new oil royalty regulations.
Until Congress is assured that they will be fair, the new
regulations must work for government and for producers, and
not result in litigation, as the proposed regulations would.
Uncertainty and litigation just add delays and costs to
producers large and small, and to the federal government, and
that can make domestic oil and gas production from federal
lands less competitive, adversely affective jobs in Texas and
other producing areas and reducing royalty revenues to the
federal government.
Please continue your lead in the fight to stop the Minerals
Management Service from making new rules final until they
solve the host of problems pointed out by oil producers,
large and small.
Sincerely,
Bill Summers,
President/CEO.
____
People for the USA,
Pueblo, CO, July 27, 1999.
Hon. Kay Bailey Hutchison,
U.S. Senate, Washington, DC.
Dear Senator Hutchison: On behalf of the 30,000 grassroots
members of People for the USA, I would once again like to
thank you for your diligent efforts to bring common sense to
royalty calculations and payments on federal oil and gas
leases.
In their efforts to balance environmental protection with
economic growth through grassroots actions, our members (not
just those in Texas) always notice and appreciate strong,
common sense leadership such as you have shown.
We support your fight to simplify the current royalty
calculation system. It is already a burden on a struggling
domestic oil and gas industry, and the Minerals Management
Service proposal simply adds insult to injury. Royalty
calculation is not, as Interior Communications Director
Michael Gauldin remarked, ``an issue to demagogue for another
year.'' With 52,000 jobs lost in just the last year?
Worse, Energy Secretary Bill Richardson has suggested that
domestic oilfield workers look to opportunity overseas.
Senator, an Administration that talks about kicking American
resource producers out of the country has a badly skewed set
of priorities.
We appreciate what you are doing to straighten them out,
and will back you up at the grass roots any way we can.
Again, on behalf of thousands of hard-working American
resource producers, thank
[[Page S10582]]
you. If you have any specific suggestions as to how we can
assist you, feel free to contact me any time.
Respectfully,
Jeffrey P. Harris,
Executive Director.
____
National Black Chamber of
Commerce
August 5, 1999.
Re: MMS Royalties
Hon. Kay Bailey Hutchison,
Senator, State of Texas, Rm. 284, Senate Russell Office
Building Washington, DC.
Dear Senator Hutchison: The National Black Chamber of
Commerce has been quite proud of the leadership you have
shown on the issue of oil royalties and the attempt of the
Minerals Management Service's, Department of Interior, to
levy eventual increases on the oil industry.
The efforts of MMS are, indeed, ludicrous. Collectively,
the national economy is booming and the chief subject matter
is ``tax reduction'' not ``royalty increase'', which is a
cute term for tax increase. What adds ``salt to the wound''
is the fact that despite a booming economy from a national
perspective, the oil industry has not been so fortunate and
is on hard times. We need to come up with vehicles that will
stimulate this vital part of our economic bloodstream, not
further the damage.
We support your plan to re-offer a one-year extension of
the moratorium on the new rule proposed by MMS. We will also
support any efforts you may have to prohibit the new rule.
Good luck in giving it ``the good fight''.
Sincerely,
Harry C. Alford,
President & CEO.
____
Citizens for a Sound Economy
Washington, DC, July 27, 1999.
Dear Senator Hutchison: The 250,000 grassroots members of
Citizens for a Sound Economy (CSE) ask you to oppose any
attempts in the Senate to strike the provision in the
Interior Appropriation bill that delays implementation of a
final crude oil valuation rule.
The current royalty system is needlessly complex and
results in time-consuming disagreements and expensive
litigation. The Minerals Management Service's (MMS) new oil
valuation proposal is, however, deeply flawed and would have
the ultimate effect of raising taxes on consumers.
The 1999 Omnibus Appropriations Act included moratorium
language concerning a final crude oil valuation rule with the
expectation that the Department of the Interior (DOI) and
industry would enter into meaningful negotiations in order to
resolve their differences. Unfortunately, more time is still
needed for government and industry is required to reach a
mutually beneficial compromise.
CSE recognizes this need and opposes any attempt to halt
the moratorium, or curtail efforts to bring about a simpler,
more workable rule.
Thank you for your attention and efforts, and for your
continuing leadership in this important matter.
Sincerely,
Paul Beckner,
President.
____
Council for Citizens Against
Government Waste,
Washington, DC, September 10, 1998.
Hon. Kay Bailey Hutchison,
United States Senate, Washington, DC.
Dear Senator Hutchison: On behalf of the 600,000 members of
Council for Citizens Against Government Waste, we
respectfully ask you to oppose any efforts in the Senate to
strike the provision in the Interior Appropriations Bill that
delays the implementation of a final crude oil valuation
rule, unless a resolution between MMS and industry can be
reached. The Minerals Management Service (MMS) proposed new
oil valuation rules that would eventually raise taxes on
producers. The rulemaking effort has involved several
revisions to the original proposal, but remains ambiguous,
unworkable, and would create even greater uncertainty and
unnecessary litigation.
Passage of this provision in the Interior Appropriations
Bill will provide the time necessary for the MMS and the
industry to reach a fair and workable agreement on the rule,
benefiting both sides. The taxpayers have a vested interest
in this issue, because the rule proposed by the MMS would
lead to an unnecessary administrative burden for both the
government and the private industry as auditors, accountants,
and lawyers attempt to resolve innumerable disputes over the
correct amounts due.
Please take this opportunity to prevent the current
proposed rule, which benefits no one, from being implemented.
We urge you to oppose any amendment to strike the provision
for delay of final valuation rule in the Interior
Appropriations Bill as it reaches the floor for debate in the
full Senate this week.
We wish to thank you for your efforts in this matter. Your
continued commitment and integrity in the promotion of
efficiency and accountability in the federal government is
sincerely appreciated. If I can be of further assistance,
please do not hesitate to contact me.
Regards,
Council Nedd II,
Director, Government Affairs & Grassroots.
Mrs. HUTCHISON. Mr. President, I have heard the Senator from
California throwing around numbers such as this has cost the taxpayers
of America $88 million already, or $60 million already. And I pointed
this out to her. I ask unanimous consent that the Congressional Budget
Office estimate be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
FY 2000 INTERIOR AND RELATED AGENCIES--S. 1292, AS REPORTED, PROPOSED
FLOOR AMENDMENTS
[Budget account--in millions]
------------------------------------------------------------------------
Pending Proposed Difference
No. -----------------------------------------
BA O BA O BA O
------------------------------------------------------------------------
1603--Hutchinson Oil valuation ..... ..... 11 11 11 11
------------------------------------------------------------------------
Mrs. HUTCHISON. Mr. President, this shows there would be a proposed
difference in income of $11 million. In addition to putting that in the
Record, I want to say that we have offset that $11 million. I have to
say I think it is ludicrous that you would say we think that in the
future you won't get $11 million and, therefore, we need to make up
that proposed lost revenue for a tax that has not even been put in
place. Nevertheless, that was the ruling we were given, so we did
offset with $11 million. But it is ridiculous to say that you have to
offset the tax that hasn't been put in place because you don't know
what businesses are going to pull up stakes and say: It is too
expensive to drill with this kind of royalty rate. We are going to go
overseas and we are going to take our jobs with us.
So I am not sure that it would be $11 million, or anything at all. My
hunch is that we are going to lose jobs and we are going to lose
income, and the schoolchildren of this country are going to suffer
because the oil business has not yet recovered from the crisis.
Mr. President, on that note, I have to also say that I think it is
very important that when we are talking about a proposed rule that
hasn't been put in place and we are already saying how much will be
missed, clearly, there is no concept of how business can work and make
a profit and continue to create jobs. So I am concerned that if we
raise this royalty valuation, which is a tax on the oil industry, at a
time when many of them are on their knees anyway, we are not going to
have income of $11 million, or $60 million, or anything else. In fact,
I think we are going to go into negative income, which is exactly what
has happened in Texas in the last year and a half, where schools have
had to shut their doors and close down and consolidate classrooms
because they could not make their budget because of the oil income not
coming in. We lost $150 million just in the last year in oil royalty
revenue in Texas alone. So this is not the time to raise rates.
Let's talk about the kind of taxes. We are talking about fairness. In
fact, we are talking about what we tax. Today, the oil is valued as it
comes out of the ground, after it has been cleaned up and is ready to
be sold. You take out the contaminants and it is clean and that is
where it is valued. But what the Government and MMS are proposing to do
is say, no, we want you to go out and get a buyer for the oil and incur
the cost of buying; and then we want you to put it in a pipeline and
take it to where it is going to be picked up by the buyer, and we are
going to value it there. That is taxing the cost. That just doesn't
make sense. That is like saying to McDonald's, whatever you spend in
advertising, we are going to tax you that amount. We are going to tax
you on your advertising for McDonald's hamburgers.
Mr. President, that concept will not fly. It doesn't happen in any
other industry. Whenever would the Government expect taxes on expenses?
It just doesn't make sense. But sometimes I think people I hear arguing
on the Senate floor have never been in business. If you have never been
in business and have never met a payroll, then you don't really
understand how hard it is to make a profit and create new jobs and do
right by your employees. I have been in business. I have met a payroll.
I know how hard it is, especially in a small business. And when the
prices are $7 or $8 a barrel and the costs are $14 a barrel, you can't
stay in business very long. And if you can't stay in business very
long, there are a lot of people and families who don't have jobs; and
if you have to lay off people
[[Page S10583]]
who are working at the well, then you also have to lay off people in
the oil fields service industry and the oil supply industry because you
aren't going to need the supplies if you are not drilling. And if it is
too expensive to drill in America, you are going to go somewhere else,
and you are going to create jobs in a foreign country.
Mr. President, I guess the last thing I will say in refuting the
arguments I heard from the Senator from Illinois and the Senator from
California is that it always seems the tack is to say, well, they don't
really care about this issue; they are supporting big oil because big
oil has contributed to their campaigns. I don't go around looking at
whether trial lawyers give to other Senators and, therefore, they don't
vote for tort reform. I don't accuse people of not representing the
interests of their States. Of course, I have oil workers in my State. I
hope I am supported by people who work in my State and live in my
State. But I would not do anything that would hurt the people of my
State. The idea that that is connected to campaign contributions I just
think is cynical, and I don't think it adds integrity to the debate.
You gauge that against a most incredible statement when you accuse
people who want to keep jobs in America, who want fair pricing, fair
taxing, and fair payment of taxes--you accuse people of having some
kind of other motive, and then you pick up a magazine called Inside
Energy and the Department of Interior communications director says on
November 2 of 1998, regarding the Hutchison-Domenici amendment that
would require them to have a fair valuation:
We are sticking to the position we have taken. It gives us
an issue to demagog for another year.
Mr. President, I think we have heard a lot of demagoguery on this
issue. I have heard the most outrageous debate and arguments that I
have heard on just about any subject on this issue, trying to make it
seem as if oil companies that are being sued are somehow connected to
whether or not we have a fair royalty valuation, trying to mesh those
issues. That just does not make sense. It does not add to the debate.
But to have the kind of demagoguery that we have heard on the floor and
then to have the Department of the Interior admit that what they want
is an issue to demagog, I have to say I think the Los Angeles Times
editorial proves they did get a demagoguery editorial. I think some of
the network television bought into it. I think there has been some very
unfair coverage because we are talking about Congress standing up for
its right to tax. If Congress doesn't stand up, who will? Who is
accountable at the Department of the Interior? It is a matter of
fairness.
I am not going to walk away from that responsibility. I know what I
am doing is right because I know we can have fair taxes of royalty. We
are talking about an industry that paid $58 billion in the last 40
years in royalty rates. They have given a lot back to this country.
They have given jobs. They have paid royalty rates. I want them to pay
fair royalty rates. I would never stand up and say they shouldn't, or
if they haven't that they shouldn't be fined. I think they should. But
we are talking about people. We are talking about jobs. We are talking
about the American economy. We are talking about retirement plans that
depend on stable oil companies and the oil industry.
I think fair taxation is the responsibility of Congress. That is what
the Hutchison-Domenici amendment will assure--fair taxation intended by
Congress.
We will have some more debate on this. I certainly hope in the end my
colleagues will not be susceptible to rank demagoguery--to rhetoric
that is harsh and not in any way fair. It may be fun to ask questions
back and forth on the Senate floor indicating that people's motives are
not the right motives or are not pure, but that doesn't add to the
debate. It is our responsibility to make policy. We are going to do it.
Mr. McCAIN. Mr. President, the Interior Appropriations bill
funds critical programs that are vital to the protection of our
nation's land and natural resources and supports federal programs for
Native Americans, as well as several energy and agriculture programs.
I commend the managers of this bill for their efforts to keep
spending in this bill within budget limitations as required by the
Balanced Budget Act of 1997. Unfortunately, I can still find in this
bill and the committee report approximately $216 million in low-
priority, unauthorized or unrequested spending that has not been
considered in the normal merit-based review process.
In the usual fashion of appropriations bills and reports, little
explanation is provided as to the merit or national priority of various
projects receiving earmarks. We are left to imagine the reasons that
certain projects, such the Bruneau Hot Springs Snail Conservation
Committee or goose-related crop depredation projects in Washington and
Oregon, are deserving of a $500,000 earmark each.
I am sure these projects are significant to the communities that
would benefit from these directed funds. But we are unfairly singling
out projects of parochial interest, rather than evaluating other more
equally deserving projects that could be more significant to the
protection of our land, forest or energy resources nationwide.
Not only do we undermine the value of our legislative process by this
type of arbitrary spending, we betray the confidence of the American
people who rely on our fair and equitable judgement to fund those
projects of greatest need and priority. Instead, we reward their faith
by choosing to provide $1 million of taxpayer funds to rehabilitate a
bathhouse at Hot Springs National Park in Arkansas. I question the
necessity of fixing up a public bathhouse when federal school
facilities for Indian children are in a deplorable state of disrepair
and ill maintenance.
In a similar fashion, $1 million is earmarked to support the Olympic
Tree Program being developed by the Salt Lake Olympic committee. While
our country takes great pride in hosting the international Olympics
events, I find it difficult to fathom why we would expect the American
people to accept the expenditure of a million dollars for this purely
aesthetic purpose.
This bill also continues a disturbing trend of including legislative
riders that, if enacted, will make substantive changes to current law
and regulations. By using the appropriations process as a policy
hammer, we are circumventing a fair and deliberative legislative review
of the need for such changes. We also shortchange the interested public
by eliminating their opportunity for input and participation.
I have heard from many interested parties who decry the inclusion of
riders that will extend grazing permits without completion of due
environmental analyses and a provision that overturns an administrative
legal opinion regarding the amount of land that can be used for mining
claims. I know that these are important issues in my state of Arizona,
yet I am precluded from fully representing the interests of my
constituents when legislative riders such as these are attached to an
appropriations measure that must be passed within a very short
timeframe with little to no opportunity to make changes.
Just yesterday, the Senate voted to restore Rule XVI which makes
floor amendments of a policy nature out of order on an appropriations
bill. I supported restoration of this Rule. Ironically, this Rule only
applies to floor amendments. I believe very strongly that it should be
applied to committee actions where a small minority of the Senate can
act to include legislative riders on an appropriations bill without
even consulting the relevant authorizing committees. I believe the Rule
should be expanded to cover committee actions.
Mr. President, ensuring the protection of our nation's resources and
meeting federal trust obligations to Native Americans are among our
most important duties. With this type of shameful waste of taxpayer
dollars and inappropriate legislative mandates on an appropriations
measure, we are betraying our responsibility to spend the taxpayers'
dollars responsibly and enact laws and policies that reflect the best
interests of all Americans, rather than the special interests of a few.
Unfortunately, due to its length, this list of $216 million of
earmarks and objectionable provisions in S. 1292, and its accompanying
Senate report, cannot be printed in the Record. However, the list will
be available on my Senate webpage.
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