Federal Issues Update
Fee to Trust Reform
MAP 21 Extension Update
California Drought Legisaltion
There was a flurry of legislative activity on Capitol Hill this week as lawmakers scrambled to tie up loose ends before departing for a month-long congressional recess. The House adjourned on July 29, but the Senate is scheduled to be in session for an additional week. Despite making substantial progress on a number of key issues, some of the more difficult political battles - including fiscal year 2016 appropriations and a long-term surface transportation bill – will be delayed until fall.
Following the August break, lawmakers in both chambers will have
limited time to reach a new funding agreement before the October
1 start of the fiscal year. It should be noted that for the first
time in six years, House and Senate appropriators were able to
complete committee-level work on all 12 of their respective
spending bills. In addition, six funding measures have been
approved by the full House of Representatives. However, the
fiscal year 2016 appropriations process has predictably stalled.
For one, a partisan quarrel in the House over the display of the
Confederate flag on federal lands has put all remaining fiscal
floor work on hold indefinitely.
Across Capitol Hill, the full Senate has yet to pass a single
fiscal year 2016 spending measure, as Democrats remain united in
their vow to prevent any bill from reaching the floor until
Republicans agree to negotiate a new budget deal. Even if
Republicans manage to overcome Democratic procedural roadblocks
and are eventually able to pass their spending measures,
President Obama has threatened to veto any bill that does not
provide resources beyond the levels prescribed in the Budget
Control Act of 2011 (PL 112-25).
Looking ahead, House Speaker John Boehner (R-OH) has signaled
that any potential budget agreement would need to be preceded by
a short-term continuing resolution. However there are still a
number of uncertainties regarding the length and scope of such an
extension. To complicate matters further, a number of House
conservatives are now insisting that any stopgap spending measure
prohibit government money from being spent on Planned Parenthood.
While the path forward remains unclear, it is likely that any
substantive budget discussions will not begin until mid-September
at the earliest.
Comprehensive Fee-to-Trust Reform Bill Introduced in
Senate
As reported earlier this week, U.S. Senate Committee on Indian
Affairs Chairman John Barrasso (R-WY) introduced legislation on
July 28 that would overhaul the Department of the Interior’s
fee-to-trust process. The bill (S 1879), which includes a series
of reforms spearheaded by CSAC, is expected to be considered by
the panel sometime this fall.
Entitled the Interior Improvement Act, the Barrasso legislation
would transform the process whereby the Interior Department,
acting through the Bureau of Indian Affairs (BIA), takes land
into trust on behalf of Indian tribes. Counties in California
have long advocated for reforms in the federal government’s trust
land system, which has led to unnecessary conflict, controversy,
and litigation.
Under current practices – which are governed not by federal
statute but by regulations that have been promulgated by the BIA
– counties are afforded limited, and often late, notice of a
pending trust land application. Additionally, the BIA does not
accord local concerns adequate weight in the land-into-trust
process, as counties are only invited to provide comments on two
narrow issues – potential jurisdictional conflicts and the loss
of tax revenues. Moreover, current law does not provide any
incentive for Indian tribes to enter into enforceable mitigation
agreements with counties to address the often significant
off-reservation impacts associated with tribal development
projects, including casinos.
Under S 1879, the BIA would be required to provide adequate,
up-front notice to counties whenever the agency receives a
complete or partial application from a tribe seeking to have
off-reservation fee or restricted land taken into trust. In turn,
counties would be afforded an opportunity to review and comment
on the application.
Furthermore, the legislation would encourage tribes that are
seeking trust land to enter into cooperative agreements with
counties, the terms of which could relate to mitigation, changes
in land use, dispute resolution, fees, etc. In cases in which
tribes and counties have not entered into mitigation agreements,
the bill would require the Secretary of the Interior to consider
whether off-reservation impacts have been mitigated. Many of the
provisions of S 1879 closely mirror CSAC’s comprehensive
fee-to-trust reform proposal.
While California’s counties have long sought statutory reforms in
the BIA’s fee-to-trust process, the Supreme Court’s 2009 decision
in Carcieri v. Salazar created an avenue for potential
legislative action. In Carcieri, the Court ruled that Secretary
of the Interior’s trust acquisition authority was limited to
those tribes that were “under federal jurisdiction” at the time
of the enactment of the Indian Reorganization Act of 1934.
Since the landmark decision, many tribes have called upon
Congress to reverse the Court’s action by passing legislation
that would put all federally recognized Indian tribes on equal
footing relative to the opportunity to have land taken into
trust. Such a legislative approach, known as a Carcieri “clean
fix,” would not institute much-needed standards in the BIA’s
fee-to-trust procedures. CSAC, while in agreement that Congress
should address the inequity caused by the Supreme Court’s action,
has remained steadfast that any legislation restoring the
secretary’s trust acquisition authority must be coupled with
long-overdue reforms in the fee-to-trust process.
It should be noted that S 1879 was the topic of brief discussion
during a July 29 Business Meeting of the Committee on Indian
Affairs. During the meeting, Senator Jon Tester (D-MT) – who
serves as vice chairman of the committee – withdrew his Carcieri
clean fix bill (S 732). According to Vice Chairman Tester, the
recent introduction S 1879 – which includes language restoring
the secretary’s trust acquisition authority – warrants a further
examination of this important issue. Accordingly, Senator Tester
pledged to review and consider the merits of Chairman Barrasso’s
reform bill.
Senate Approves Long-Term Transportation Bill; Congress
Clears MAP-21 Extension
The Senate on July 30 approved legislation – the Developing a
Reliable and Innovative Vision for the Economy (DRIVE) Act (HR
22) – that would reauthorize for six years the nation’s expiring
surface transportation law (MAP-21). However, the measure only
identifies enough funding for the first three years. Funding for
the final years of the bill would be available only if new
legislation is enacted providing the necessary offsets.
With regard to funding for local bridges – a key CSAC priority -
the bill would require states to spend a certain percentage of
Surface Transportation Program funds on bridges that are not
located on the National Highway System (NHS). Although MAP-21
created a funding “set-aside” for local bridges that are neither
located on the NHS nor on the Federal-Aid Highway System
(referred to as “off-system” bridges), the Act did not require
states to spend any money on local bridges that are off of the
NHS but on a Federal-Aid Highway.
In a positive development, the legislation was amended before
final consideration to ensure that half of the new off-NHS bridge
set-aside be spent on locally owned bridges that are off of the
Federal-aid system. In California, the percentage of locally
owned off-system bridges is nearly equal to the percentage of
locally-owned on-system bridges.
It should be noted that the Senate also adopted a controversial
amendment that would reauthorize the Export-Import Bank – an
independent agency that provides low-interest loans to help U.S.
companies sell their products overseas. Renewing the bank’s
charter, which expired in June, continues to be a priority for
the White House, congressional Democrats, and a number of
business groups. However, it has been opposed by conservatives in
both chambers, who have characterized it as a form of corporate
welfare. This will likely to be a sticking point in negotiations
going forward.
With MAP-21 slated to expire on July 31, Congress also cleared
legislation (HR 3236) this week to keep surface transportation
programs operating until October 29. The three-month extension is
intended to give both chambers the necessary time to complete
action on a long-term deal. Notably, the spending offsets
included in the bill would be enough to keep the HTF solvent
through the end of the calendar year. If needed, this financial
cushion leaves the door open for Congress to pass another
short-term extension in the fall. In the meantime, House leaders
are confident that they will be able to produce a long-term bill
this fall.
California Drought Legislation Introduced in the
Senate
On July 29, Senators Dianne Feinstein (D-CA) and Barbara Boxer
(D-CA) introduced their long-awaited drought-relief legislation.
The senators have touted their bill as the appropriate mix of
both short and long-term measures designed to help communities
address the effects of the current water crisis, as well as
future droughts.
Among other things, the legislation would authorize funding for a
variety of existing and new programs, with an emphasis on
assisting drought-stricken communities, building desalination and
water storage projects, and supporting water recycling,
conservation, and groundwater recharge. The bill also would
authorize federal funding for a variety of programs aimed at
assisting in the protection and recovery of fish populations. It
should be noted that the measure would cost the federal
government roughly $1.3 billion over the next decade.
In addition, the senators have emphasized that their legislation
has been crafted to remain consistent with environmental laws,
including the Endangered Species Act (ESA) and the Clean Water
Act (CWA), as well as the existing biological opinions. While a
number of the provisions are modeled after a previous iteration
of the bill, new provisions have been added that, according to
the senators, further clarify that actions under the bill would
need to be consistent with existing laws. Similarly, the bill
includes additional water-rights protection language. Senator
Feinstein has noted that this was a particular point of emphasis
in the drafting of the new bill given previous strong pushback
from environmental stakeholders.
Looking ahead, Senator Feinstein has indicated that the bill will
be the subject of a legislative hearing in the Senate Energy and
Natural Resources (ENR) Committee this fall. The senator also has
stated that she expects the legislation to be paired with a
broader Western drought measure that ENR Chairwoman Lisa
Murkowski (R-AK) is in the process of developing.
Sanctuary Cities Legislation Considered in Both
Chambers
Recent tragedy in San Francisco has brought the matter of
“sanctuary cities” to the forefront on Capitol Hill. This month
alone, roughly half a dozen bills have been introduced that
target the more than 200 jurisdictions nationwide with so-called
sanctuary laws – generally defined as laws that bar collaboration
between local law enforcement officials and federal authorities
when it comes to identifying and deporting immigrants living in
the country illegally. According to the Center for Immigration
Studies, 15 counties in California are classified as sanctuary
jurisdictions.
On July 23, the House advanced legislation – the Enforce the Law
for Sanctuary Cities Act (HR 3009) – that would bar sanctuary
jurisdictions from receiving funding for certain justice
programs, including the State Criminal Alien Assistance Program
(SCAAP), the Edward Byrne Memorial Justice Assistance Grant
(Byrne JAG) Program and the Community Oriented Policing Services
(COPS) program.
In a Statement of Administration Policy (SAP), the Obama
administration expressed strong opposition to the legislation and
instead called upon Congress to approve comprehensive immigration
reform. Moreover, the SAP indicated that if the measure were to
reach the president’s desk, his top advisors would recommend that
he veto it.
Across Capitol Hill, the Senate Judiciary Committee last week
held a hearing to examine the impact of sanctuary cities on
public safety. During the hearing, Senator Feinstein indicated
that she is working on legislation with Senator Boxer that would
require local law enforcement officials, upon request from U.S.
Immigration and Customs Enforcement (ICE), to notify federal
authorities before releasing illegal immigrants who have been
convicted of a felony.
Finally, Senate Judiciary Committee Chairman Chuck Grassley
(R-IA) has introduced his own legislation that would withhold
federal law enforcement grants from local jurisdictions that do
not abide by federal immigration requests. The bill (S 1812) also
would impose a mandatory minimum sentence of five years in prison
for immigrants who illegally re-enter the country after being
deported. Existing law does not require prison time for those who
reenter the country after having been deported.
Movement on TANF Reauthorization
Earlier this month, the House Ways and Means Committee held a
hearing on a draft bill that would reauthorize the Temporary
Assistance for Needy Families (TANF) program. Pending
reauthorization since 2010, the committee is attempting to craft
a measure that can garner bipartisan support. While Democrats
welcomed a number of the draft bill’s provisions, they also
acknowledged that much more discussion was needed before they
could support it.
The draft contains a number of long-sought improvements to TANF,
including work participation rate changes. For example, it would
extend vocational education training from 12 to 24 months. It
also would allow partial credit for meeting at least half of the
required hours of work or related activities. The additional
administrative flexibility given to states and counties would be
counterbalanced by provisions instituting heavier federal
financial penalties on states failing to meet targets negotiated
with the Department of Health and Human Services (HHS) on TANF
recipients’ employment and earnings rates.
Looking ahead, the Ways and Means Committee could mark up its
bill at some point in September. For its part, the Senate has not
moved on TANF and is not likely to do so until there is action in
the House. Another short-term extension of TANF is anticipated
before October 1, when the current authorization expires