Ted Stevens

Mr. STEVENS

Mr. STEVENS. I urge adoption of Amendment No. 224.

Mr. STEVENS. Mr. President, this amendment deals with Delaware and Susquehanna River Basin Commissions. It was offered by Senators Biden, Reid, and Roth. It would direct the Secretary of the Interior to provide compensation to the Federal representative to the Delaware and the Susquehanna River Basin Commissions, without indicating who that individual would be. The second-degree amendment makes the Secretary of the Interior, or his designee, the representative. It does not provide for compensation above that otherwise earned by that employee of the Department of the Interior. I trust that both amendments will be before the Senate at the same time. The second one is amendment No. 224. Amendment No. 224 to Amendment No. 131 (Purpose: A 2nd degree amendment to amendment No. 131 providing that the Federal representative to the River Basin Commissions shall be the Secretary of the Interior or his designee)

Mr. STEVENS

Mr. STEVENS. Mr. President, on behalf of the majority leader, this morning the Senate will resume consideration of S. 672, the supplemental appropriations bill. Under the order, there will be 30 minutes of debate, equally divided between myself and Senator Byrd, with the cloture vote occurring on S. 672 following that debate. All Senators should anticipate that the vote will occur at approximately 10 a.m. this morning.

Mr. STEVENS

Mr. STEVENS. Mr. President, I now ask unanimous consent that it be in order to file second-degree amendments until 10 a.m. this morning.

Mr. STEVENS. Following that vote, additional amendments are expected to the supplemental appropriations bill. Rollcall votes will occur throughout today's session. It is the majority leader's intention to complete action on the bill as soon as possible, so Members who intend to offer amendments should be prepared to do so as soon as possible during today's session. Mr. President, there are 109 amendments filed to this bill. I plead with the Senate to vote cloture on this bill so we will have a means of managing this bill. It is a disaster relief bill. I now yield 5 minutes of the time allocated to me to Senator Hagel for the purpose of making a statement as in morning business, and ask that the statement appear at the appropriate place in the Record after the cloture vote.

Mr. STEVENS. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. STEVENS. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. STEVENS. Mr. President, this modifies the eligibility for emergency rail assistance funds under the bill. It has been cleared on both sides.

Mr. STEVENS. Mr. President, I move to reconsider the vote.

Mr. STEVENS. Mr. President, later this morning, the Senate is going to vote, as I said, as near to 10 o'clock as possible. I regret that this step is necessary. I didn't think it would be necessary to have cloture. Senator Byrd and I have spent 2 days trying to resolve difficulties on the bill regarding amendments. As I said, 109 first- degree amendments are pending with regard to this bill. We simply cannot wait to move on the legislation. It does have millions of dollars for assistance to victims of the disasters. Those disasters, Mr. President, occurred in 33 States. The bill provides $1.8 billion to the Department of Defense for overseas contingency operations. This is for money that has already been spent on activities in Bosnia and Southwest Asia, and it replaces the funds that are critical to operating and maintenance accounts and personnel accounts to assure regular training and quality-of-life programs for the Department of Defense personnel through the remainder of 1997. Let me make that clear. The money has been spent, but it was spent from very critical accounts under the power of the Presidency. We need to reprogram moneys into those accounts in massive amounts to assure that in the last quarter of this year, there is regular training and maintenance of our readiness. Now, last night, we commenced a bipartisan review of all the amendments presented by 2:30. We hope we can work out or accept many of those. I urge any Member who is serious about the appropriations and has an amendment to this bill that is germane, to come to the floor so we can clear as many of the amendments as possible. It is my intention, after consulting with Senator Byrd, to take a very strict view to amendments in a post-cloture environment. I think that is what the Senate will want to do--consider germane amendments and move forward to this bill. Nongermane legislative amendments will be subject to a ruling by the Chair, and that will be taken up after cloture. But as I said, this is an emergency, although the funds--like the Department of Defense funds, money is being spent on the disaster now from other accounts available to the executive branch, so we must replace that money and make further money available. We have placed the money to keep the Government going, where the money has been borrowed for a short period of time, under the procedures available for disasters. We must make these moneys available. This is a 500-year flood, Mr. President. This is one of the most severe disasters we have had since the Johnstown flood. If we are successful here, I think we can proceed very quickly. The distinguished chairman of the Budget Committee has concluded the budget agreement. He will manage the budget presentation following the action on this bill. That is my understanding. We hope that we will be able to get that budget agreement through the Senate and then be able to proceed on the 1998 appropriations bills. So I ask Members to defer nonemergency matters until we bring up those bills. Now that we have a budget agreement, we are certain we will be moving regular appropriations bills very quickly. Many of the amendments presented here to this bill are amendments that would be germane to the regular appropriations bills for the various agencies. But they are not germane to this bill. So I hope that there is a strict ruling by the Chair on the germaneness of these amendments that have been filed. Now, we have worked several days to try and bring about compromises in several areas, such as the amendment pertaining to the continuing resolution concept that is in the bill, the census and endangered species. I hope that we can effect a compromise on each of those issues. If not, let's have the vote. We waited all afternoon yesterday to take up these issues. As the Chair knows, we were finally forced to recess last night so that we could get the control factor that will come from the cloture process. As I said, I didn't think it would be necessary. As a matter of fact, I told the floor staff I didn't think we should even file that cloture motion. They thought we should, and I am glad we did. They were right and I was wrong. Senator Byrd and I are going to work out the shortest time agreement possible on any amendments today. We expect to have many votes. I believe that we will begin to call up amendments from the eligible list as soon as the Chair rules on the amendments under cloture. As a matter of fact, we are available to take up amendments before 10 o'clock if anybody wants to come over and try to work one out before that time. I have taken the bulk of my time, Mr. President. Let me, again, thank Senator Byrd for his cooperation. We have moved numerous amendments in a bipartisan fashion already. Later today, Senators Conrad and Dorgan have asked us to meet with the mayor of Grand Forks, and we will do that. We are going to see some television footage. I saw some, as a matter of fact, on the news, but we intend to promise the mayor that we are going to finish this bill and get it to the President as soon as possible. I am happy to yield the remainder of the time to Senator Byrd, if he wishes time at this time.

Mr. STEVENS. Thank you. Mr. President, I want to raise the issue of a provision that is in the bill concerning section 2477 of the Revised Statutes--43 United States Code 932. Some groups have been alleging in the press that the provision in the supplemental bill before us regarding rights-of-way under section 2477 of the Revised Statutes is going to result in roads across our national parks and wilderness. That is simply not true. These false allegations are being made in order to scare our constituents and to convince Members to oppose our provision. Rights-of-way under Revised Statute 2477 were granted by statute from 1866 to 1976, when the provision was repealed. At the time of the repeal, all existing rights-of-way were specifically protected. Rights-of-way under R.S. 2477 are granted across Federal lands not reserved for public uses. When Congress sets aside land for a park or wilderness, that land is reserved for that purpose. Once the park or wilderness is created, no new right-of-way can be created under Revised Statute 2477. This means that only rights-of-way that were created prior to the reservation of the land for a park or wilderness are valid under R.S. 2477. To create a right-of-way under R.S. 2477, there must either have been public use of a right-of-way or an affirmative act of a State indicating that it accepted the grant and intends to use it for a public highway. Most of this Nation's most famous parks were created during the 110 years that Revised Statute 2477 was available. Yellowstone was created in 1872. Yosemite, Kings Canyon, and Sequoia were created in 1890. The Grand Canyon was set aside in 1908. Denali, then known as Mount McKinley, was created in Alaska in 1917. Katmai in Alaska was established in 1918, and Glacier Bay National Park was created in 1925. Zion National Park in Utah was created in 1919, with Bryce Canyon following in 1923, and the Arches National Park in 1929. Throughout the 50 or more years of each of these parks' existence, a Revised Statute 2477 right-of-way could have been asserted, even before the provision was repealed. Yet, these parks have not been paved by public highways. Congress began creating wilderness areas in 1964--12 years before Revised Statute 2477 was repealed. Section 5 of the Wilderness Act specifically preserves existing private rights. It has been 20 years since Revised Statute 2477 was repealed and over 30 years since the creation of many major wilderness areas. During the 30 years of the policy of wilderness the same practice that the provision in the supplemental seeks to continue was in effect. Yet, during those 30 years, we have not seen any of our wilderness areas covered with roads under Revised Statute 2477. In Alaska, where 60 percent of the wilderness areas exist, we have already dealt with the issue. The Alaska National Interest Lands Conservation Act has numerous provisions that specifically deal with access to wilderness areas. Nothing in this provision changes the law regarding rights-of-way in Alaska. On the contrary, the provision seeks to keep the pre-existing policy and specifically denies the Secretary of the Interior the right to unilaterally change the policy contrary to what Congress has said many times and what the courts have said many times. As a matter of fact, Congress has spoken three times in the past 2 years on this and stated that the Secretary cannot change the existing law and policy by regulation or by edict. The people who claim this provision will lead to roads across wilderness areas and parks already created by Congress are just plain wrong. What is at issue here are areas that are not yet wilderness or that have been recently added by Executive action to our parks and monuments. Mr. President, every time Congress has addressed that subject, it has protected valid existing rights, even in the creation of national parks and wildlife refuges. Wilderness areas by definition don't have any roads. The environmental groups and the Department of the Interior are seeking to cut off valid rights-of-way in certain areas of the West so that those areas may be proclaimed wilderness. I hope that the Senate understands this. If the Secretary of the Interior and these groups are allowed to prevail, then areas that do have existing valid rights-of-way, which should by law be given some consideration and may ineligible to become wilderness areas, could be created as additional wilderness and national park areas by Executive order or secretarial edict. If they can keep the R.S. 2477 right-of-way from being recognized under State law, as they have been created for the past 130 years, then those areas would be roadless and eligible for wilderness designation by Congress. That is the issue here. There are valid, existing rights-of-way across some of these areas. They have been used for decades by the public in the West. Those areas are not capable of being established as wilderness areas. But that is not for us to decide here. All this provision does is maintain the status quo. If there are valid existing rights under R.S. 2477, they had to be created more than 20 years ago, before 1976. The provision simply prevents the Secretary of the Interior from prejudging the issue in the ongoing review of which remaining Federal areas should be wilderness. This only preserves rights-of-way that already exist. It does not create new rights or new roads. I hope that the Senate will seriously consider the issue that is coming before us today regarding Revised Statute 2477. Our intent is merely to keep the policy that has existed in the past and which has been protected by every act of Congress that I know of. The valid existing rights were protected. Those rights have been defined as far as rights-of-way under State law for 130 years. This Secretary of the Interior now wants to have them decided under Federal law that his regulations would establish. That is contrary to the policy of Congress. It is contrary to the decisions of the courts of the United States, and it should not be done by secretarial edict. As I said, we have acted in the National Highway System Designation Act of 1995, in the 1996 Interior appropriations bill and in the 1997 Interior appropriations bill to prevent those regulations from being issued. Now the Secretary wishes to announce a policy. That policy is that in the future the validity of the rights will be determined by Federal law. That is contrary to a whole series of court decisions and contrary to the acts of Congress that specifically recognize valid existing rights under State law. Mr. President, I hope that this is going to be a short day. But I want to tell the Senate that it is our intention, as Senator Byrd has announced, to enforce the cloture motion. I call again on the Senate to vote for cloture. Give the managers of this bill the control that comes from the cloture process, and we will assure this bill passes to provide money to those in the disaster areas. The bill affects disasters in 33 States, Mr. President. We will give this bill to the conference and to the President as quickly as possible. I suggest the absence of a quorum.

Mr. STEVENS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. STEVENS. I send an amendment to the desk.

Mr. STEVENS. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. STEVENS. Mr. President, this is an amendment that we hope will bring about an awareness of Government officials of Uruguay of a very sad situation with regard to the fishing assets from Washington State and Alaska that were entered into in a joint venture with a seafood company in Uruguay. What happened was that the assets of the Americans were seized after they were in Uruguay territory, and the joint venture that was supposed to be forthcoming was dissolved by actions of the Uruguay citizens. I offer this amendment sort of in frustration, trying to see if we can work out with the Uruguay Embassy here and officials in the State Department at Montevideo a resolution of this problem. I hope that it has the salutary effect of calling the attention of the Uruguay Government to a very unsatisfactory development with regard to our business relationships. I urge adoption of the amendment.

Mr. STEVENS. Mr. President, this is the time for filing of second- degree amendments, I remind Senators. It is also the time set for the vote on cloture motion.

Mr. STEVENS

Mr. STEVENS. Mr. President, Senator Byrd and I are overwhelmed by the support of the Senate for this bill. I hope that will be demonstrated in the hours to come.

Mr. STEVENS. Mr. President, we would like to work up a schedule, rotating from one side to the other with amendments. I want to state to the Senate the amendments that have been filed touch or concern every one of our 13 subcommittees. Those subcommittees' staffs are standing by now to confer with any Member who really wants to pursue one of these 109 amendments that have been filed. I ask the Chair to help us keep order. We would anticipate, for the information of the Senate, with the concurrence of the two leaders, that we would proceed with the D'Amato amendment and then the Bumpers amendment and, if possible, another amendment and have our first series of stacked votes sometime around 12:30 to 1 o'clock. We will keep the Senate informed, but I do want the Senate to know we will try to stack votes so that none will occur prior to approximately 12:30 to 1 o'clock.

Mr. STEVENS. The Senator from California sought recognition on this amendment?

Mr. STEVENS. Mr. President, I hope all Members understand, however, we are entirely in agreement with statements made so far concerning these legal immigrants who will be covered by this procedure. Hopefully, pursuant to the budget agreement, we will continue a policy of caring for people who are here legally now. But I hope everyone, including the Immigration Service, is on notice it applies to those who are here now. In the future, I hope that we will enforce the commitment made by those who sponsor legal immigrants to maintain those people that they sponsor in the event they become indigent and cannot support themselves. That is the commitment that we must see carried forward once again in our basic law of protecting immigration. Again, it is my desire at this time, Mr. President, to ask the Senate to set aside the D'Amato amendment. This amendment and the Bumpers amendment will be voted upon sometime before 1 o'clock today. That is our hope. There may be further proceedings with regard to the D'Amato amendment. I do not want to jeopardize them. But I do ask unanimous consent that we temporarily set aside the D'Amato amendment at this time so we may proceed with the Bumpers amendment.

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

Mr. STEVENS. Mr. President, I ask unanimous consent that Anne McInerney be given privileges of the floor during the duration of this bill.

Mr. STEVENS. Mr. President, as I have already reviewed in some detail, section 2477 of the Revised Statutes, R.S. 2477, granted rights-of-way for the construction of public highways across unreserved Federal lands. Congress passed this law in 1866 and the provision was later recodified at section 932 of title 43 of the United States Code. By permitting travel across Federal lands, R.S. 2477 facilitated the settlement of the West. The rights-of-way granted pursuant to R.S. 2477 remain land access routes for rural residents. R.S. 2477 was repealed in 1976 by section 706 of the Federal Land Policy and Management Act [FLPMA]. Again, I point out to my colleagues, section 701(a) of FLPMA expressly states that ``Nothing in this Act * * * shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.'' Further, section 701(f) says that nothing in FLPMA ``shall be deemed to repeal any existing law by implication.'' And section 701(h) specifically states that ``All actions by the Secretary concerned under this Act shall be subject to valid existing rights.'' Three times in the same act Congress made it clear that nothing in FLPMA gave the Secretary of the Interior the power to terminate valid existing rights. We meant it then and we mean it now. The Secretary is ignoring the law and all existing precedents with his proposed policy that effectively terminates valid existing rights under R.S. 2477, which for over 120 years have been determined under State law. Regulations in place in 1976 provided that the validity of the right- of-way should be determined by State law. Likewise, Federal courts have found State property laws control assertions of an R.S. 2477 right-of- way. In Alaska, which we still call the Last Frontier, R.S. 2477 rights of way are still being used by miners, trappers, and others traveling across specific tracts of unreserved public land. The Interior Department in the 1980's saw the need for the Federal Government to recognize these trails for what they were--public access routes. Interior adopted a policy in 1988 which for the most part kept Alaskans out of court. Elsewhere, Federal courts were being asked to quiet title on lands with an R.S. 2477 right of way, and these courts looked to State law to decide if there had been construction of a highway. In August 1994, Interior published new proposed regulations which would have established Federal definitions for key terms in R.S. 2477. According to Interior, where there was a conflict between the Federal definitions and State law, under the proposed regulations the Federal rules would prevail. This approach would have redefined existing property rights. It would also have the incongruous result of having some R.S. 2477 rights of way quiet title actions adjudicated under State law and others under Federal law. Soon after Interior proposed these new rules, resolutions were introduced in the House and Senate urging the Secretary to withdraw them. The comment period was subsequently extended through August 1995. In late 1995, Congress placed a 1-year moratorium on any rulemaking regarding R.S. 2477 rights of way. The fiscal year 1996 Interior appropriations law, enacted in 1996, also included a similar moratorium. Congress acted a second time in 1996. Section 108 of the General Provisions of the fiscal year 1997 Interior appropriations law permanently requires congressional authorization of any rules and regulations developed by agencies to address the recognition, validity, and management of R.S. 2477 rights of way. This measure, agreed to by Congress last fall, was not vetoed, nor was there ever a threat of veto that I was made aware of. However, in January 1997, the Secretary sought to evade this law by issuing ``policy guidance'' which provides a process for recognizing R.S. 2477 claims only ``where there is a demonstrated, compelling, and immediate need.'' This process is similar to that in the disputed regulations which Congress has prohibited by law since 1995. Issuance of this policy circumvents the legal requirement to have congressional approval of agency rulemaking concerning R.S. 2477 rights-of-way. Section 310 of the supplemental appropriations bill, S. 672, prohibits the use of funds appropriated for fiscal year 1997 and thereafter ``to promulgate or implement any rule, regulation, policy, statement or directive'' issued after October 1, 1993, regarding the rights-of-way Congress granted by R.S. 2477. The October 1, 1993, date makes it clear that Interior cannot do by policy what it by law cannot do by regulation. Under section 310, Interior can continue to implement Federal policy with respect to R.S. 2477, but only those policies and regulations previously agreed to prior to the attempted change that Congress has repeatedly rejected. Section 310 is needed to enforce the requirement that Congress first authorize any rules regarding R.S. 2477 rights-of-way. Allowing the January 1997 policy to remain in place vitiates the Administrative Procedures Act and the express directives of the Congress, which were approved by the President. Section 310 will not, as some suggest, open up Alaska's wilderness areas and parks to almost a million new miles of roads upon the assertion of claims by ``virtually anyone.'' First, as I have said, section 310 only tightens the standing mandate that agencies obtain specific authorization from Congress, which includes our elected representatives of public lands States, before issuing rules that would effectively deny valid, existing property rights under R.S. 2477 in those States. In short, this provision creates no new rights-of-way across Federal land which were not in existence before 1976. It merely preserves rights-of-way which were established at least 20 years ago, but still have not been recognized by the Interior Department. R.S. 2477 rights of way are not exempted from environmental, health and safety, and other laws to protect the public. Second, with respect to all existing rights of way, I am assured by the Governor of Alaska that our State will not be paved over. The Alaska Department of Natural Resources completed a study recently to identify the list of rights of ways my State might assert as public highways under R.S. 2477. Some 1,900 were initially reviewed, but 700 were found to be on State land and not subject to this Federal law. Of the remaining 1,200, only 558 appear to qualify as R.S. 2477 rights of way. So far the State of Alaska has filed only one quiet title action. The State of Alaska also advises me that it will not file rights of way across section lines, unless of course there is a preexisting trail that otherwise constitutes an R.S. 2477 right of way. Asserting rights of way across section lines alone would be a fruitless exercise. Mere geography tells us that we don't need roads across mountain tops. Cost is another reason. I'm advised that it costs $6 million to build 1 mile of road in my State. I proposed section 310's funding restrictions in good faith, with the confidence of having stood on this floor over 20 years ago debating the legislation that ultimately became FLPMA. On July 8, 1974, the Senate debated S. 424, the bill that the Senate passed in the 93d Congress and was reintroduced in the 94th Congress as S. 507. S. 507 was the bill that ultimately became FLPMA. In July 1974, I was assured by Senator Haskell, chairman of the relevant subcommittee within Interior and Insular Affairs, that our young State would have the same chance as other Western States to develop a road system based on the pattern of use its settlers established and the laws the State enacted. Senator Haskell told this Chamber it was the intent of Congress that all existing R.S. 2477 rights-of-way would be determined according to the law of the State the right-of-way was in. In fact Senator Haskell cited a specific North Dakota case, Koleon versus Pilot Mound Township, as the basis for the committee's understanding of the law. That case said an R.S. 2477 right-of-way is established ``if there is use sufficient to establish a highway under [the] laws of the state.'' I refer my colleagues to the Congressional Record of July 8, 1974, page S22284. Today, I am proposing that we uphold the intent of the Congress of 20 years ago and the intent of the 104th Congress as well. Last fall Congress agreed to a provision in the fiscal year 1997 appropriations law requiring agencies to seek congressional authorization of R.S. 2477 rulemaking. Section 310 of the supplemental asks nothing new, it merely prevents Interior from doing by agency policy what Congress prohibited it from doing by formal rulemaking. I urge my colleagues to reject this amendment so that Interior understands it cannot circumvent the will of Congress through sleight of hand. Mr. BUMPERS addressed the Chair.

Mr. STEVENS

Mr. STEVENS. I ask the Senator if he would kindly do us the favor and not turn this into a motion to instruct. It merely says ``no funds can be spent after June 30, 1998.'' I say to the Senator from Delaware, there are no funds available after September 30, 1997, under this bill. The amendment is merely a sense-of-the-Senate resolution in disguise.

Mr. STEVENS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.