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Congressman Tom McClintock

Representing the 4th District of California

Opening Statement House Committee on Natural Resources September 30, 2009

September 30, 2009
Press Release

 

     Thank you, Mr. Chairman.  I appreciate the opportunity to comment on the three Water and Power Subcommittee bills before us today.

 

     These are all bills to settle water rights claims made against the federal government by various Indian tribes.  These come with a hefty price tag: $577 million, with assignment of rights to over 110,000 acre feet of water.  There are hundreds of such claims that are likely to follow.

 

     It is important that these claims be settled.  They involve some of the oldest standing litigation in the federal court system.  They establish something that the people of their regions – both on and off reservation – have lacked, and that is a certainty about future water rights and apportionments.  

            

But here is what has troubled me in my brief tenure as Ranking Member of your Water and Power subcommittee. 

 

These are settlements of outstanding litigation involving the United States Government.  It seems to me that the only relevant question is whether these settlements are advantageous to the government compared to its likely liability under current law.

 

If we were the board of directors of a private corporation deciding whether to approve a negotiated legal settlement, we would be guilty of breaching our fiduciary responsibility to stockholders if we made that decision without consulting legal counsel.

 

The administration has expressed reservations about all of these bills, and that should be a warning to us.  What troubles me most is that we have been unable to get a straight answer to the most important question at issue, and that is, “Do these settlements exceed the likely liability of the government if these claims went to court?”

 

Or to be more blunt, are we cutting our losses or are we giving away the store?  I can’t get a straight answer to that question.

 

The three well-intentioned bills before us today are prime examples of what’s gone wrong.   This Administration – and I might add, the last Administration –  have repeatedly testified that they cannot support funding levels in these settlements, yet they fail to provide Congress basic answers or consistency when we ask for alternative funding amounts or whether the bills are beneficial to the American taxpayer. 

 

As a result, Congress is being forced to choose a funding amount in the dark and without an informed opinion from our legal counsel.  In essence, we are a blind-folded arbitrator. 

 

     I’m new around here, but I spent 22 years in the California legislature, many of them on the relevant committees that heard settlement bills.  The central testimony in all of those settlements was from the Attorney General’s office – as our legal counsel.   They would appear before us and testify that in their professional legal judgment the settlements were justified under current law and that the state’s liability and legal costs could potentially exceed the settlement if the matter went to trial.

 

     This is the one critical issue that has not been addressed for these bills.

 

I asked this question in committee and didn’t get an answer.  Last week I sent a letter asking the Departments of Justice and the Interior asking for their assessment of the government’s liability and haven’t received an answer.

 

I think this is a reasonable request and one that should be answered to the satisfaction of this committee and the House before these bills are acted upon.

 

  There is precedent for such opinions, based upon the Department of Justice testimony in 1994 before this Committee on the Colville settlement.  There, Peter Steenland, a Clinton Justice Department official testified: “the Federal government is not that well postured for a victory on this claim which has been pending for over 40 years.  Absent the settlement, we could well litigate it for another 10 years and the outcome could easily be a significant cost to the taxpayers and the public.” 

 

If the Clinton Administration could give Congress a straight answer, then there’s no reason why the current one can’t. 

 

There’s a simple word for this.  Transparency.  We’re assured this is a guiding principle of the administration.  We truly need some in this case if we are to do our jobs competently, and do justice to both sides in these claims.

 

Before these bills come to the House floor, I hope that we will get the answers everyone deserves.