Tuesday, March 23, 2010

Who’s on First? – Who is writing Klamath Deal Legislation and why do the Obama Administration and Members of Congress provide different answers?

Last week KlamBlog published information from a credible source in Washington DC indicating that the Department of Interior (DOI) was not drafting legislation to implement the Klamath Dam and Water Deals but rather that North Coast California Congressman Mike Thompson and Oregon Senator Jeff Merkley were “taking the lead” in drafting Klamath Deals Legislation. Soon afterward we received information from a credible source indicating that DOI was indeed doing the drafting. This second source also pointed us to a web site where draft Klamath Deals Legislation – presumably drafted inside DOI - is available on line.    

Someone drafted the Klamath Deal Legislation available on line. Both DOI officials and Members of Congress who represent Klamath constituencies are saying it is not them and pointing fingers toward each other. Why the confusion? Why is the entity that produced the draft legislation now available on line unwilling to take responsibility for it?  We can think of a couple of reasons:

Members of Congress may be unwilling to admit that they are drafting Klamath Deals Legislation because the Deals are controversial with their constituents or because they want to discourage opposition from getting organized early on. This is not really plausible with respect to Senator Merkley who attended the high profile Deal signing event in Salem Oregon and appears to have reached the conclusion that supporting the Deals is in his political interest.

DOI officials may want to deny having their fingerprints on the legislation because of FACA - the Federal Advisory Committee Act. FACA provides that government officials can only take “advice” from private entities via processes that are open to the public and fully vetted.

If the legislation which is eventually introduced conforms closely to the Klamath Dam and Water Deals, DOI officials may have trouble convincing a judge that they have not violated FACA  They may also then be subject to Freedom of Information Act requests which force them to disclose interactions they have had in private with other entities concerning what is in the legislation. If DOI officials distributed a legislative draft to select private entities for comment and then used those comments to revise the draft, for example, FACA has been violated.

The EPA has good guidance on “Collaboration and FACA” available on line.

Section 204(b) of Unfunded Mandates Reform Act of 1995 (P.L. 104-4) provides an exemption from the provisions of FACA for “intergovernmental consultations involving intergovernmental responsibilities or administration.”

Whether consultations on Klamath Deal Legislation fit the exemption is a matter of interpretation which, as far as we can tell, has not yet been adjudicated. However, FACA clearly applies when non-government entities are involved as is the case for the Klamath Deals. A FACA challenge to legislation based on the closed and confidential negotiations which lead to the Deals may be just a matter of time – particularly if Klamath legislation introduced into Congress conforms closely to the Deals and if drafting by DOI with the input of private entities can be proven.  

It is not known whether Congressman Thompson and Senator Merkley have decided to carry the Klamath Deals Legislation which is currently available in draft form. Constituents and other interested parties may want to ask them. Like all members of Congress they can be contacted on line through the Mike Thompson and Jeff Merkley web sites or via www.congress.org.

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