[Congressional Record Volume 158, Number 116 (Wednesday, August 1, 2012)]
[House]
[Pages H5606-H5608]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILLE LACS LAKE FREEDOM TO FISH ACT OF 2012
Mr. CRAVAACK. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 5797) to amend title 46, United States Code, with respect to
Mille Lacs Lake, Minnesota, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5797
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mille Lacs Lake Freedom To
Fish Act of 2012''.
SEC. 2. MILLE LACS LAKE, MINNESOTA.
Notwithstanding any other provision of law, the owner or
operator of a vessel operating on Mille Lacs Lake, Minnesota,
shall not, with respect to such vessel, be subject to any
Federal requirement under subtitle II of title 46, United
States Code, relating to licensing or vessel inspection.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Minnesota (Mr. Cravaack) and the gentleman from Washington (Mr. Larsen)
each will control 20 minutes.
The Chair recognizes the gentleman from Minnesota.
General Leave
Mr. CRAVAACK. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days in which to revise and extend their remarks and
include extraneous materials on H.R. 5797.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Minnesota?
There was no objection.
Mr. CRAVAACK. Mr. Speaker, I yield myself as much time as I may
consume.
Mr. Speaker, in March 2010, the U.S. Coast Guard ruled that Mille
Lacs Lake was a federally navigable body of water based on historical
interstate commerce.
Specifically, the Coast Guard justified their actions by using a U.S.
Army Corps of Engineers determination from 1981 that said because
lumberjacks in the 1800s floated logs on Mille Lacs Lake and down the
Rum River, Mille Lacs Lake should now be made a federally navigable
water body. Currently, the Rum River is dammed in three places, and the
same Corps of Engineers report said that the dams prohibit through
navigation. In addition,
[[Page H5607]]
two previous Army Corps determinations in 1931 and 1974 also considered
the river nonnavigable.
I would like to submit the U.S. Coast Guard determination for the
Record.
Memorandum
From: D. L. Nichols, CAPT, USCG, CGD Eight (dl).
To: S. L. Hudson, CAPT, USCG, CG Sector Upper Mississippi
River (s).
Subj: Navigability Determination for Mille Lacs Lake,
Minnesota.
Ref: (a) 33 C.F.R. Sec. 2.36; (b) 33 C.F.R. Sec. 3.40-1; (c)
33 C.F.R. Sec. 3.45-1.
1. For the purpose of determining its jurisdictional
authority, the Coast Guard has determined that Mille Lacs
Lake is a ``navigable waterway of the United States.''
2. The geographic boundary between the Eighth Coast Guard
District and the Ninth Coast Guard District currently runs
through Mille Lacs Lake. This navigability determination is
for the entirety of Mille Lacs Lake. The Ninth District Legal
Staff has reviewed and agrees with this determination.
3. No federal statute addresses the navigability of Mille
Lacs Lake, and no federal court has determined the
navigability of the waterway. Furthermore, Mille Lacs Lake is
not subject to tidal influence. This navigability
determination is based on the historical use of the waterway.
Specifically, Mille Lacs Lake has been used, in connection
with other waters, as a highway for substantial interstate or
foreign commerce.
4. Navigability determinations are administrative findings
based on the criteria set forth in 33 C.F.R. 2.36. The
precise definitions of ``navigable waters of the United
States'' and ``navigability'' are dependent ultimately on
judicial interpretation and cannot be made conclusively by
administrative agencies.
5. This opinion solely represents the opinion of the Coast
Guard as to the extent of its own jurisdiction to enforce
laws and regulations, and does not represent an opinion as to
the extent of the jurisdiction of the United States or any of
its agencies.
____
Memorandum
From: CGD Eight.
To: File.
Subj: Legal Support for Navigability Determination for Mille
Lacs Lake, Minnesota.
Ref: (a) CGD Eight (dl) memo of 3 March 2010, Navigability
Determination for Mille Lacs Lake, Minnesota; (b) 33
C.F.R. Sec. 2.36; (c) 33 C.F.R. Sec. 3.40-1; (d) 33
C.F.R. Sec. 3.45-1.
1. Purpose. This memorandum documents the legal basis for
the Coast Guard's determination of navigability in ref (a).
2. Discussion.
a. Internal waterways of the United States not subject to
tidal influence are ``navigable waters of the United States''
if they ``[a]re or have been used, or are or have been
susceptible for use, by themselves or in connection with
other waters, as highways for substantial interstate or
foreign commerce, notwithstanding natural or man-made
obstructions that require portage.'' 33 C.F.R.
Sec. 2.36(a)(3)(i)(emphasis added). The test is one of
historic navigability. U.S. v. Harrell, 926 F.2d 1036 (11th
Cir. 1991). In 1921 the Supreme Court discussed the issue of
obstructions by stating that a waterway ``capable of carrying
commerce among the states is within the power of Congress to
preserve for purposes of future transportation, even though
it . . . be incapable of such use according to present
methods, either by reason of changed conditions or because of
artificial obstructions.'' Economy Light & Power Co. v. U.S.,
256 U.S. 113, 122 (1921); see also U.S. v. Appalachian Power
Co., 311 U.S. 377, 408 (``When once found navigable, a
waterway remains so.''). When logs are floated on a waterway
in interstate commerce, the waterway is a highway for
interstate commerce. See id. at 405; Wisconsin Public Service
Corp. v. Federal Power commission, 147 F.2d 743 (7th Cir.
1945); United States v. Underwood, 344 F. Supp. 486, 490
(M.D. Fla. 1972).
B. In April 1981 the ACOE conducted an historical analysis
of commerce on Mille Lacs Lake and the Run River in
Minnesota. See encl. (1). Historical accounts in the document
reveal a history of interstate commerce on Mille Lacs Lake.
Specifically, Mille Lacs Lake was ``used in the
transportation of logs'' from 1848 to 1904, and evidence
shows that at least a portion of the logs floated were
transported to markets outside of the state. Encl (1) at 5.
3. Conclusion. Mille Lacs Lake has been used in the past as
a highway for interstate commerce. The Coast Guard thus
determines that Mille Lacs Lake is a ``navigable water of the
United States'' and the Coast Guard may properly enforce
applicable federal law on this waterway.
Enclosure: Army Corps of Engineers (ACOE) memo of 2 April
1981: Navigability Determination for Mille Lacs Lake and Rum
River, Minnesota
Now the U.S. Coast Guard is forcing all Mille Lacs Lake fishing
guides to spend time and money to obtain a Federal boating license.
This license and associated costs can run well over $2,000, and
according to testimony by the U.S. Coast Guard in the Transportation
and Infrastructure Committee, they have to travel to Toledo, Ohio, or
St. Louis, Missouri, in order to apply for these licenses in person and
to take the tests.
This new U.S. Coast Guard regulation is killing jobs by making it
impractical for some fishing guides to even stay in business and making
it even more expensive for tourists to hire their services.
The Mille Lacs Lake Freedom to Fish Act removes this burdensome,
administrative overreach from the U.S. Coast Guard and restores to the
State of Minnesota the original authority to permit and inspect
vessels.
I truly appreciate all the Coast Guard does, I truly do. But the
State of Minnesota already patrols Mille Lacs Lake quite well and the
Coast Guard's authority over the lake is an unwanted intrusion. It's
duplicative, and it's currently nonexistent. This would be a new area
of jurisdiction for the Coast Guard requiring additional assets and
manpower.
The State has rules and inspection procedures in place to keep its
residents safe and has been doing so for as long as anybody can
remember. The State is perfectly capable of enforcing boating laws on
Mille Lacs Lake, and ultimately Mille Lacs Lake belongs to Minnesotans
and should not be controlled by the Federal Government.
We heard from the U.S. Coast Guard on the issue in a Coast Guard
Subcommittee hearing on May 24, 2011. Rear Admiral Kevin Cook and
Deputy JAG Calvin Lederer testified about the burden this would impose
on Minnesota fishing guides. Additionally, they were unable to provide
adequate justification for the navigability determination beyond the
Army Corps report.
My legislation would stop fishing guides from being forced to spend
over $2,000 on obtaining a fishing license they simply just don't need.
Ultimately, it will allow Minnesotans to focus on what is most
important--enjoying one of Minnesota's most beautiful lakes.
This has been fully vetted by the Mille Lacs Band of Ojibwe and
National Association of State Boating Law Administrators. This
legislation is also supported by the Minnesota Department of Labor and
Industry, fishing guides and resort owners, Minnesota Anglers for
Habitat and Minnesota Outdoor Heritage Alliance.
I would like to submit for the Record a letter of support from the
Minnesota Outdoor Heritage Alliance.
Minnesota Outdoor
Heritage Alliance,
June 31, 2012.
Representative Cravaack: As president of the Minnesota
Outdoor Heritage Alliance (MOHA), I am always interested in
legislation that preserves our constitutional right to hunt
and fish, improves sportsmen recruitment and retention or
increases the economic viability of these pursuits for
Minnesota's sportsmen and women. Because of these
organizational goals, I am submitting this letter in favor of
the Mille Lacs Freedom to Fish (HR 5797) legislation. Since
many Minnesota guides are small, family owned concerns that
have been in business for many years, additional regulations
and fees are not only unnecessary but also cost prohibitive
and dangerous to our time honored way of guiding and fishing.
Moving this legislation forward will address these concerns
and update the laws in a way that is not only safe but
beneficial for our fishing industry and our fishing license
holders.
Sincerely,
Tim Spreck,
MOHA President.
Senator Klobuchar also introduced companion legislation that has been
cosponsored by Senator Franken. In the committee markup, Representative
Tim Walz and Ranking Member Rahall lent their support as well, making
this truly a bipartisan and bicameral piece of legislation.
I'd like to thank Geoff Gosselin and John Rayfield of the Coast Guard
Subcommittee staff for their working with me on the language of this
amendment, as well as Tom Dillon from legislative counsel. I would also
like to thank Joel Amato, the chief boiler inspector from the Minnesota
Department of Labor and Industry for providing his guidance and
expertise, as well as Mr. Kim Elverum from the Minnesota Department of
Natural Resources, and George Nitti of Nitti's Hunters Point Resort.
Although the text of this bill is short, a lot of work went into
making sure that this accomplishes the goals of restoring jurisdiction
to Minnesota.
I reserve the balance of my time.
Mr. LARSEN of Washington. Mr. Speaker, I yield myself as much time as
I may consume.
Mr. Speaker, H.R. 5797 exempts the owners and operators of small
passenger vessels operating on Mille Lacs
[[Page H5608]]
Lake in central Minnesota from U.S. Coast Guard licensing and
inspection requirements.
This bill provides rather narrow regulatory relief. However, because
this bill was rushed to legislation, to markup without first having a
hearing on the bill itself or having the Subcommittee on Coast Guard
and Maritime Transportation consider the specific bill, no one can say
for sure what consequences might arise in the future. My concerns are
somewhat allayed by learning the State of Minnesota has an adequate
program to regulate vessels operating on its inland lakes, including
Mille Lacs.
Nonetheless, the Coast Guard has expressed concerns that the
limitations imposed on its vessel safety authorities by this bill could
create uncertainty and some confusion among the boating public,
especially regarding marine casualty investigations and maritime
liability.
Notwithstanding these objections, and because the bill, as reported,
would no longer vacate the Coast Guard's 2010 determination that Mille
Lacs Lake is navigable, I do not object to the bill moving forward
today.
With that, I yield back the balance of my time.
Mr. CRAVAACK. I thank my respected colleague for his kind remarks,
and I ask my colleagues to join me in supporting this important
legislation to Minnesota.
I yield back the balance of my time, as well.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Minnesota (Mr. Cravaack) that the House suspend the
rules and pass the bill, H.R. 5797, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
The title was amended so as to read: ``A bill to exempt the owners
and operators of vessels operating on Mille Lacs Lake, Minnesota, from
certain Federal requirements.''.
A motion to reconsider was laid on the table.
____________________