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(All Congressional Record references are to Vol. 125, Daily Edition, of the 96th Congress, 1st Session, and will be cited as "p. , CR, date.")
BILLS INTRODUCED IN 96th CONGRESS
H.R. 4449 (OBEY)
A bill to amend the Federal Water Pollution Control Act to provide an addi-tional allotment of funds to certain States, and for other purposes; to the Committee on Public Works and Transportation (p. H4502, CR, June 13, 1979). H.R. 4608 (UDALL)
A bill to amend the Water Resources Planning Act; jointly, to the Committees on Agriculture, Interior and Insular Affairs, and Public Works and Transporta-tion (p. H5084, CR, June 25, 1979).
SENATE
S. 1328 (HATFIELD, et al.)
A bill to amend the Federal Water Pollution Control Act to provide an addi-tional allotment of funds to certain States, and for other purposes; to the Committee on Environment and Public Works. (Seep. 87563, CR, June 13, 1979, for Senator Hatfield's statement when introducing this Bill.)
S. 1341 (CULVER, et al.)
-A bill to amend the Federal Water Pollution Control -Act, as amended, and the Solid Waste Disposal Act, as amended, to provide a system of response, liability, and compensation for releases of oil, hazardous substances, and hazardous wastes, to establish a response and liability fund, and for other purposes; to the Committee on Environment and Public Works. (Seep. 87695, CR, June 14, 1979 for the remarks of Senator Culver when introducing this Bill.) S. 1363 (JACKSON, by request)
A bill to provide certain authorities for the Department of Energy; to the Committee on Energy and Natural Resources. (Seep. S7884, CR, June 18, 1979, for Senator Jackson's remarks when introducing this Bill.)
S. 1472 (DeCONCINI)
A bill to amend title 28 of the United States Code to provide for special venue provisions in cases relating to the environment; to the Committee on Judiciary. (See pp. S9126-S9128, CR, July 10, 1979, for Senator DeConcini's
COMMITTEE REPORTS H. Rept. 96-305
The House Committee on Public Works and Transportation reported R.R. 4023, a Bill to amend the Clean Water Act of 1977 to extend the moratorium on industrial cost recovery; with amendment. (Seep. H5084, CR, June 25, 1979) H. Rept. 96-311
The House Committee on Interior and Insular Affairs reported R.R. 1825, a Bill to protect archaeological resources owned by the United States, and for other purposes, with amendment. (Seep. H5419, CR, June 28, 1979.) S. Rept. 96-235
The Senate Committee on Energy and Natural Resources reported
s.
14, a Bill to increase the acreage limitations and abolish the residency requirements--o-f the ederal reclamatiurr laws, with amen men gether with additional
-and supplemental views). (Seep. 58930, CR, July 9, 1979.)
SENATE ACTION Clean Water
Senate passed with committee amendment S. 901, to repeal the industrial cost recovery provision of the Clean Water Act (pp. S7654-S7657, CR, June 14, 1979).
Hydroelectric power projects
Senate passed with cbnnnittee amendments, S. 948, to revise the limitation on the size of small hydroelectric power projects (pp. 57658-57659, CR, June 14, 1979).
HOUSE ACTION Energy and Water Approprations
House completed all general debate and began reading for amendment on H.R. 4388, making appropriations for energy and water development for the
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will continue on Friday, June 15.
Pending when the Committee of the Whole rose was an amendment that seeks to delete the $6 million appropriation for the O'Neill Unit project in Nebraska.
By a yea-and-nay vote of 385 yeas to 1 nay with 3 voting "present," Roll No. 240, the House agreed to resolve itself into the Committee of the Whole.
Agreed to:
An amendment that adds $2 million in appropriations to provide for addi-tional personnel for the DOE Office of Inspector General;
An amendment that adds $75,000 for the completion of the second year of the fl_ood damage prevention study ·on the San Lorenzo River in Santa Cruz County, California;
An amendment, as amended, that reduces Corps of Engineers general con-struction funds by $735,000. Rejected an amendment in the nature of a
substitute to this amendment that also sought to delete $9.1 million in appropriations for the Stonewall Jackson Lake project in West Virginia
(rejected by a division vote of 13 ayes to 97 noes); and
An amendment that increases the appropriation for general investigations, Department of Interior, by $50,000.
Rejected:
An amendment that sought to set a $600,000 limit on use of funds appropri-ated to the Federal Energy Regulatory Commission to pay expenses of parties intervening in regulatory or adjudicatory proceedings. Agreed to an amend-ment to this amendamend-ment that would have required the refund of any funds paid
to an intervenor if the respondent prevails, such funds to then be paid to the respondent (agreed to by a recorded vote of 257 ayes to 156 noes, Roll
No. 241); .
An amendment in the nature of a substitute to the previous amendment, as amended, that sought to set a $550,000 limit on use of funds to pay expenses of intervenors (rejected by a recorded vote of 136 ayes to 271 noes, Roll No. 242); and
A motion that the Committee of the Whole rise and report the bill back to the House with the recommendation that the enacting clause be stricken.
(pp. H4511-H4557, CR, June 14, 1970.)
House continued consideration of R.R. 4388, making appropriations for energy and water development for the fiscal year ending September 30, 1980. Pro-ceedings under the 5-minute rule will continue on Monday, June 18.
Pending when the Committee of the Whole rose was an amendment that seeks to increase by $5 million the appropriation for salaries and expenses of the Nuclear Regulatory Commission.
By a yea-and-nay vote of 319 yeas to 2 nays, Roll No. 246, the House agreed to resolve itself into the Committee of the Whole.
Rejected:
An amendment that sought to delete the $6 million appropriation for the O'Neill Unit project in Nebraska (rejected by a recorded vote of 106 ayes to 210 noes with 1 voting "present," Roll No. 24 7); and
An amendment that sought to reduce by $5.3 the appropriation for the Colorado River Basin Salinity Control Project plant at Yuma, Arizona
(rejected by a recorded vote of 34 ayes to 253 noes, with 1 voting "present," Roll No, 248). (See pp. H4596-H4612, CR, June 15, 1979.)
By
a yea-and-nay vote of 359 yeas co 29 nays,· Roll No. 253, the House passed R.R. 4388, making appropriations for energy and water development for the fiscal year ending September 30, 1980.Rejected a motion to recommit the bill to the Committee on Appropriations. Agreed to:
An amendment that increases by $5 million the appropriation to the Nuclear Regulatory Commission for its on-site inspector training program (agreed to by a recorded vote of 350 ayes to 10 noes, Roll No. 250);
An amendment that permits 731 Nuclear Regulatory Commission personnel in the nuclear reactor regulation program to perform all duties authorized by law (agreed to by a recorded vote of 350 ayes to 12 noes, Roll No. 251);
An amendment that authorizes and directs the completion of the Tellico Dam and Reservoir project, notwithstanding any other provisions of law; and
An amendment that prohibits expenditure of funds by the Water Resources
Council for any programs or projects not authorized by Congress subsequent to enactment of this act.
Rejected an amendment that sought to prohibit expenditure of funds by the Nuclear Regulatory Commission for issuance of an operating license to a nuclear plant in a State which has not submitted an emergency evacuation plan to the Connnission (rejected by a recorded vote of 147 ayes to 235 noes,
Roll No. 252). Earlier, sustained a point of order against a similar amend-ment that required a "tested" emergency evacuation plan. (See pp. H4642-H4665, CR, June 18, 1979.)
Fish and Wildlife Conservation
House passed R.R. 3292, amended, to assist the States in developing fish and wildlife conservation plans (pp. H5502-H5505, CR, July 9, 1979) The
Archaeological Resources Protection
the House passed R.R. J.825, amende-4, g:;;:p=rolect arehaeo-1~4:e-a± resources
owned by the United States. Agreed to amend the title (pp. H5509-B5513, CR, July 9, 1979).
FEDERAL REGISTER
44 Fed. Reg. 35153, June 18, 1979,
EPA issued a Proposed Rule entitled Implementation of Procedures on the NEPA.
SUPREME COURT
Cert Granted:
No. 78-1522. State v. Andrus. Ruling below 586 F.2d 756, C.A. 10. Issue presented is authority of the Secretary of the Interior to refuse to grant State land selections because lands have not been classified as
available for selection and because there is a difference in value between
the lost lands and selected lands.
No. 78-1756,
u.s.
v. Mitchell, Ruling below 59 F.2d 1300, Court of Claims.Is U.S. answerable in money damages for alleged breaches of trust in
con-nection with management of forest resources situated on lands allotted to
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-Andrus v. Sierra Club, U.S. Supreme Court, U.S. , 13 ERC 1161.
NEPA does not require that a federal agency prepare an E!S for its
appropri-ation requests. Appropriation requests presented to Congress are a different
breed of cats from "proposals for legislation" mentioned in NEPA as requiring
an EIS,
Roy Tibbals Wilson, et al. v. Omaha Indian Tribe, et al., No. 78-160.
State of Ipwa, et al. v. Omaha Indian °Tribe, et al., No, 78-161, U.S. 47 Law Week 4758.
Rather than giving a short summary of this opinion, we elected to record the Reporter's Syllabus because it gives a rather detailed sunnnary of the
Pursuant to an 1854 treaty, the reservation of the Omaha Indian Tribe (Tribe) was established in the Territory of Nebraska on the west bank of the Missouri River, with the eastern boundary being fixed as the center of the river's main channel. In 1867, a General Land Office survey established that certain land was included in the reservation but since then the river has changed course several times, leaving most of the survey area on the Iowa side of the
river, separated from the rest of the reservation. Residents of Iowa ulti-mately settled on and improved this land, and these non-Indian owners and their successors in title occupied the land for many years prior to April 2, 1975, when they were dispossessed by the Tribe, with the assistance of the Bureau of Indian Affairs. Three federal actions, consolidated in District Court, were instituted by respondents, the Tribe and the United States as trustee of the reservation lands against petitioners, including the State of !owa and several individuals. Both sides sought to quiet title in their names, respondents arguing that the river's movement had been avulsive and
thus did not affect the reservation's boundary, whereas petitioners argued that the disputed land had been formed by gradual accretion and belonged to the Iowa riparian owners. The District Court held that state rather than federal law should be the basis of decision; that 25 U.S,C. §194--which pro-vides that "[i]n all trials about the right of property in which an Indian may be a party on one side, and white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a pre-sumption of title in himself from the fact of previous possession or owner-ship"--was not applicable because the Tribe could not make out a prima facie case that it possessed the disputed land in the past without proving its case on the merits; and that under Nebraska law, the changes in the river had been accretive and thus the petitioners were the owners of the disputed area, The Court of Appeals reversed, ruling that federal rather than state law was applicable; that the Tribe had made a sufficient showing to invoke §194; and that applying the federal common law of accretion and avulsion to the evidence, the evidence was in equipoise and thus, under §194, judgment must be entered for the Tribe,
Held:
1. The Court of Appeals was partially correct in ruling that §194 is applicable here; by its terms, §194 applies to the private petitioners but not to petitioner State of Iowa. In view of the history of §194 and its purpose of protecting Indians from claims made by non-Indian squatters on their lands, it applies even when an Indian tribe is the litigant rather than one or more individual Indians. But, while Congress was aware that §194 would be interpreted to cover artificial entities such as corporations as well as individuals, there is nothing to indicate that Congress intended
the word "white person" to include any of the States of the Union, Here,
there seems to be no question that the disputed land was once riparian land lying on the west bank of the Missouri River and was long occupied by the Tribe as part of the reservation set apart for it in consequence of the 1854 treaty, and this was enough to bring §194 into play. In view of the purpose of the statute and its use of the term "presumption" which the "white man" must overcome, §194 contemplates the non-Indian shouldering the burden of persuasion as well as the burden of producing evidence once the tribe has made out its prima facie case of prior title or possession,
-2. The Court of Appeals properly concluded that federal law governs the substantive aspects of the dispute, but it erred in arriving at a fed-eral standard, independent of state law, to determine whether there had been an avulsion or an accretion.
(a) The general rule that, absent an overriding federal interest, the laws of the several States determine the ownership of the banks and shores of waterways, Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363, does not oust federal law in this litigation. Here, the United States has never yielded title or terminated its interest in the property, and in these circumstances, the Indians' right to the property depends on federal law, "wholly apart from the application of state law principles which normally and separately protect a valid right of possession." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677.
(b) However, state law should be borrowed as the federal rule of decision here. There is no imperative need to develop a general body of federal common law to d-ecide case-s-e-S-uch as- this, heFe an int-erstate boundary is not in. dispute (the location of the boundary between Iowa and Nebraska having been settled by Compact in 1943). Furthermore, given equitable appli-cation of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests. And this is also an area in which the States have substantial interest in having their own law resolve controversies such as these; there is considerable merit in not hav-ing the reasonable expectations, under state real property law, of private landowners upset by the vagaries of being located adjacent to or across fr-om Indian reservations or other property in which the United States has a substantial interest. Cf. Board of Conunissioners v. United States, 308 U.S. 343; Arkansas v. Tennessee, 246 U.S. 158.
(c) Under the construction of the 1943 Compact in Nebraska v. Iowa,
406 U.S. 117, Nebraska law should be applied in determining whether the changes in the river that moved the disputed land from Nebraska to Iowa were avulsive or accretive.
575 F.2d 620, vacated and remanded.
COURT CASES
Southern Colorado Water Conservancy District v. Huston, et al., 593 P.2d 1347. The Supreme Court, on the petition by the Conservancy District for consoli-dation of a number of water cases wherein attempts were being made to
- - - appr0tyriat-e orr-tri_butary underground water, er
Consolidation and assignment to a special water Judge for a deter-mination
of-(a) Is nontributary underground water subject to appropriation? (b) Can nontributary waters outside designated ground water basins be appropriated for use by a person having no property in the surface?
(c) By what authority can such waters be appropriated?
(d) Can non-tributary waters outside the boundaries of designated groundwater basins be appropriated. for use by persons other than the claimant or those whom the claimant is authorized to represent?
(e) Can applications for nontributary waters outside the boundaries of designated groundwater basins be filed (1) without first obtaining permits from the State Engineer and if so (2) without first applying for such permits.
..
United States v. Gold, U.S. Dist. Ct., Illinois, 13 ERC 1097.
A criminal indictment charging violation of F.I.F.R. in reporting information
on pesticides, wherein EPA attorney acted as prosecutor and witness in the
grand jury proceedings which returned the said indictment, must be dismissed
on the grounds that defendant's Fifth Amendment rights were violated.
Dow Chemical Company v. Blum, U.S. Dist. Ct., Michigan, 13 ERC 1129.
EPA properly used its emergency authority to suspend use of 2-4-5 T and
silvex, without a hearing. Such action was not arbitrary or capricious,
and it was not a clear error judgment in view of the Alsia study showing
a direct relationship between the uses of the named herbicides and
"spontaneous human abortions in women living ":i.n the study area.
Westside Property Owners v. Schlesinger, C.A. 9, 13 ERC 1140.
The lower court properly applied a rule of reason in approving an Air Force
EIS covering F-,,15 military aircraft. assignment to Luke Field, Arizona. The
EIS did not cover cumulative effects of the program, but the overall EIS
was proper under the circumstances, (The Court gave a rather extended review
of the lower court's discussion of the EIS.)
U.S. Steel v. EPA, C.A. 5, 13 ERC 1149.
EPA cannot avoid following the notice and connnent requirements for rulemaking
required by the Administrative Procedure Act by claiming the statutory time
frame set forth in the Clean Air Act for the rule precluded compliance.
The Court rejected such claim, pointing out that EPA would have to explain
why the time limitation prevented APA compliance. The Court refused to
ap-prove EPA's post rule comment period as equivalent to the pre rule notice
and comment statutory requirement. See like ruling in Sharon Steel Corp. v.
EPA, C.A, 3, 9 ELR 20316.
McGill v. EPA, C.A. 5, 13 ERC 1156,
FIFRA does not give pesticide users who are not registrants the right to
challenge an EPA-registrant agreement which cancelled the hearings on
cancellation of the pesticide's registration.
White v. Board of Land Commissioners, Wyoming, 595 P.2d 76.
Lessee of state land who perfected water rights for irrigation of said lands
does not acquire title to such water rights which can be conveyed separate
from the land. Actually the lessee is acting as an intermediary for the
state, thus the water right becomes the property of the state, By statute,
in Wyoming, depending upon the date of acquisition, the lessee may become
entitled to compensation for such improvement should the state offer the
leased land for sale,
EDF, et al. v. Andrus, C.A. 9, 596 F.2d 848.
The Court of Appeals ruled:
1. That 1944 Flood Control Act authorizes the sale of industrial water
from Yellow and Boysen reservoirs located in Montana and Wyoming. Such
sale had to be done in accordance with reclamation law.
2. That the Secretary of the Interior had properly exercised his
authority in his determination that there was available industrial water
and that irri$ation projects would not be injured by such sales,
Ward v. Coleman, C.A. 10, 13 ERC 1213, 9 ELR 20331.
The Court ruled that the use of a report required by 311(b)(5), FWPCA, on an oil spill as the basis for assessing a Sec. 31l(b)(6) civil penalty violates the Fifth Amendment privilege against self-incrimination.
Note: In this case the reporter was an individual operator.
Dow Chemical v. Consumer Product Safety Commission, U.S.Dist. Ct., 9 ELR 20307. A Federal agency that chooses to develop policy can choose between the use of rules and regulations or by case-by-case adjudication. If it chooses to use the regulation method, APA must be followed and notice and comment procedures must be followed.
United States v. Blair, U.S. Dist. Ct., Nevada, 9 ELR 20324.
Under the Commerce Clause, Congress can enact laws with criminal sanction forbidding the use of aircraft in hunting coyotes. Such activities pose a threat to interstate air travel and thus are subject to Congressional attention. See, however, U.S. v. Hershey, U.S. Dist. Ct., Montana, 463 F.Supp. 1111, 9 ELR 20326, for a contra ruling. Here the Court ruled that such hunting act violated the State reserved powers of the Tenth Amendment. States have the right to control game and fish acquisi-tion which are protected from Federal encroachment by the Tenth Amendment. EDF v. Higginson, U.S. Dist. Ct., D/C, 9 ELR 20329.
The fact that the defendant agrees with the plaintiff that a comprehensive environmental impact statement must be prepared for the Colorado River Basin does not require dismissal of the suit on grounds that no case or controversy exists because:
a. Defendant's position is subject to change, and
b. Four intervenor States dispute the need for an EIS of the claimed magnitude, thus satisfying the actual controversy requirement of the Declaratory Judgment Act
NRC v. SEC, D/C C.A., 9 ELR 20367.
The District of Columbia Court of Appeals approved SEC's refusal to require corporate disclosure of environmental information and minority and women employment policies and records. The plaintiffs claimed that SEC violated APA and NEPA in its rulemaking proceedings. The Court in an extended opinion then reviewed the Court's obligation when it reviews an Ad-ministrative agency's rulemaking action. Here SEC methods received the Court's approval.
