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Congressman Tom McClintock

Representing the 4th District of California

HR 4783 - Claims Resolution Act of 2010

November 30, 2010
Speeches

Mr. Speaker:  Titles 3 through 6 of the bill purport to settle four water rights claims against the United States by signing away the public’s right to nearly 300 BILLION gallons of water annually AND in perpetuity -- in addition to spending more than $1.2 billion.

          The proponents of the bill are correct that if taxpayers will end up paying more if the claims go to trial, then we should settle out of court.  But I sincerely doubt this is the case.

          For the better part of a year, I asked for a legal opinion from the Attorney General on this question -- to no avail -- until a day before the issue was first brought to the House floor. What we received was not a legal opinion assessing the validity of the claims or the extent of the taxpayers’ liability.  It was a general statement of their preference for settling claims rather than litigating them.

          And it is undermined by many specific objections raised by the Administration.  For example, with respect to the White Mountain Apache settlement, the Department of Interior wrote on November 15: “This authorizes federal appropriations for numerous tribal projects that are extraneous to settlement,” and urged “these projects should be considered on their own merits in separate authorizing legislation.”  Last year, it warned that funding would “be excessive if it were viewed as settlement consideration.”

          They also warned of language – still in the bill – which waives the sovereign immunity of the United States for future litigation.  They warned, “this provision will engender additional litigation – and likely in competing state and federal forums – rather than resolving the water rights disputes…”

“Extraneous to the settlement.” “Engender additional litigation.”  “Excessive if … viewed as settlement consideration.”   

Those aren’t my words – they’re this administration’s words.  In fact, the administration expressed so many reservations about aspects of these settlements that we can only conclude that these are not settlements negotiated by the Attorney General and presented to Congress, but rather a grab-bag written by Congress itself and now rubber-stamped by the Administration on political and not legal grounds.

We were initially told that the Attorney General never comments on the validity of claims, but we found this to be false.  For example, in the Colville case in 1994 involving a similar water rights settlement, when the Attorney General’s office believed we had a weak case and should settle, they warned us that we are “not that well postured for a victory on this claim” and that “the outcome could easily be a significant cost to the taxpayers and the public.”

That’s not what they’re saying in this case.

          Mr. Speaker, we have many more Indian Water settlements pending for vast quantities of water and substantial sums of money.  We need to get our act together on this.

I believe Congress needs to demand that the administration be candid and forthcoming in all claims for settlement, and that Congress insist that before it begins deliberating on a settlement, that the Attorney General has conducted and completed the negotiations, determined all the details, certified that the settlement is within the legal liability of the government and only then submits that settlement for consideration by Congress. 

          Anything less is breaching the fiduciary responsibility that we hold to the people of the United States. 

 

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