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Washington in brief: Midnight rider appealed and energy bill opposed

Intertribal COUP on energy measure: building bridges to the 19th century

WASHINGTON - A national Native utilities policy group has joined the swelling chorus of disapproval for the national energy bill now before the Senate.

Robert Gough of Intertribal COUP (for Council on Utilities Policy) said the bill's many measures in behalf of conventional coal-fired power generation and rail transport are "a bridge to the 19th century." Democrats on the House of Representatives Resources Committee has already called the bill "a lavish buffet of unwarranted subsidies for oil and gas companies," as well as for western coal companies that would be able to expand lease holdings without going through a competitive bidding process and maintain undeveloped leases without the so-called "diligence requirements" of current law.

Gough, who played a role in bringing wind power to the Rosebud Sioux Tribe, said wind power and other renewable sources represent the energy future. Provisions that would support "renewables," as they are known in the energy industry, are still under debate in the bill.

The bill's emphasis on conventional fossil fuels reflects the Bush administration's demand for efficient, reliable fuel supplies in a nation whose demand has followed a growth curve so predictable that economic planners simply count on it. The bill is of a piece with the president's liberalization of land use regulations at the Bureau of Land Management in resource-rich Western states earlier in the current congressional session.

But while fossil fuel development may be economically efficient in the short term, proponents of renewables question the long-term environmental impact of the energy measures. For instance, Gough said, a "looming water crisis" will only be aggravated by accelerated fossil fuels development. In the Southwest and along the Missouri River in the Northern Plains, as the map indicates, water is in short supply and/or subject to dispute. The Southwest and western states make up the nation's leading regions for coal and other fossil fuels resources. Power production processes for both coal and natural gas are exceedingly water-intensive.

The bill also has plans for extraction-related railway development in the Northern Pains, particularly involving the Powder River basin in Wyoming, as shown on the map.

Appeal filed against 'midnight rider' in trust funds case

WASHINGTON - Plaintiff attorneys in the class action lawsuit over the Individual Indian Money trust have asked an appeals court to cancel a congressional amendment that puts a stay on the historical accounting of the trust funds ordered by a lower court.

The congressional amendment, a "midnight rider" attached at the last minute with minimal debate to an Interior Department spending bill, is unconstitutional, according to Keith Harper, a Native American Rights Fund attorney on the case.

"The court is the last authority on statutory construction," he said. By making law of language as to how the bill may not be construed, he explained, Congress in essence interprets the law - a court function.

He added that unambiguous precedent exists in case law to prevent Congress from revisiting settled law in cases a court has finalized - as it did in this case, he maintains, when an appeals court upheld a lower-court ruling on an accounting. The idea is that Congress cannot "fish the judiciary," as it were, for a more favorable outcome on a settled issue that might have been different if the law had been different.

On separate but related issues, Harper said NARF and the plaintiffs welcome the mediation of the case now afoot in Congress. The name of Stuart E. Eizenstat has come up on the Senate Committee on Indian Affairs as a possible mediator. Of Eizenstat, Harper said, "He wrote a report when the Interior Department destroyed 162 boxes of documents, he wrote a report that essentially held Interior blameless. So his present involvement has not been stellar."

Eizenstat, author of the book "Imperfect Justice," most recently played a role in the mediation of Holocaust reparations in Europe.