Coastal Tribes Scoring Export Win With Geoducks

Bloomberg BusinessWeek magazine is featuring Tribes in the Puget Sound area that have successfully captured export markets in China and elsewhere with a unique product: the massive Geoduck clam. This unusual natural resource has become highly profitable due to growing consumer demand in Asia, and effective management and marketing by coastal Tribes has created a flourishing multi-million dollar industry. 

Foster Pepper Native American Group attorneys Greg Guedel and Ron Whitener are quoted in the article, which discusses the treaties and court decisions that affirmed Tribes' rights to Geoducks and other marine resources in their traditional lands. After solidifying their legal rights, Tribes that harvest Geoducks implemented strong monitoring and environmental protection for key marine areas, helping ensure the vitality and sustainability of this industry. With Geoduck habitat confined to the Northwest coast and a small area in California, Puget Sound Tribes are shaping the growth of this beneficial industry from a dominant market position.

Fake Snow On Sacred Peaks: "It's Like Bombing A Church"

San Francisco Peaks, Arizona (Al Hikes)

The legal battle over whether fake snow can be sprayed by a ski resort in Arizona’s 12,000-foot-high San Francisco Peaks has a new venue: the Flagstaff City Council. Tribal elders, U.S. senators, federal judges and senior Obama Administration officials all have weighed in on the controversy of artificially applying frozen water to land where the Hopi, Navajo and 11 other tribes trace their origins. Many Native Americans believe it is sacrilege for skiers and snowboarders to use the area for recreation, and more so for the ski resort owners to tamper with the natural surroundings. The Arizona Snowbowl resort says it's just trying to run a business.

The Snowbowl ski area is located on 777 acres in the Coconino National Forest. Tribes have been battling the resort since the 1970s. For the second time in 20 years, the U.S. Supreme Court last year refused to hear their case, and now the matter will be reviewed by the Flagstaff City Council. Local officials are to vote on whether to pump potable recycled water to the resort to make snow. It's unclear whether this will be acceptable to the Tribes, who were infuriated by a previous plan to use treated sewer water.

"This mountain is where life began; it created us," says Rex Tilousi, a leader of the Havasupai tribe. Native Americans journey to the peaks to collect herbs for traditional healing and worship deities they believe dwell there. Dumping artificial snow there, says Mr. Tilousi, is "like bombing a church."

For the operators of Snowbowl, artificial snow is necessary to ensre a steady ski season, which is the basis for hundreds of local jobs. "If you don't have snowmaking, the question is not if you will go out of business; it's when you will go out of business," says Eric Borowsky, the resort's owner. "We only occupy 1% of the peaks. Can't we share this?"

After years of environmental review detailed in a 600-page report, the U.S. Department of Agriculture's Forest Service, which oversees the federal land that the resort sits on, approved the artificial snow plan in 2005.  If the new plan to use potable water goes through, the federal government may contribute funds to off set the cost increase compared to the use of treated sewage. Arizona Senators John McCain and Jon Kyl sent a letter in March condemning "the use of taxpayer dollars to subsidize snowmaking at Arizona Snowbowl." At the same time, they called on the government to grant Snowbowl permission to start its expansion "immediately."

Obama Administration Issues Final Columbia River Salmon Plan

Seigning Salmon In The Columbia River, Circa 1914

The federal government has issued its final program for restoring endangered salmon on the Columbia River -- a plan that will have substantial impact on the rights and livelihood of the Tribes that comprise the Columbia River Inter-Tribal Fish Commission.

The administration’s revised plan has been updated to reflect new scientific studies and incorporate a flexible "adaptive management" strategy for quick implementation of stronger protective measures if needed. Officials hope that will be sufficient to prevent another rejection of its plans by the federal court overseeing the matter. "While much attention has focused on the courtroom, the region should be proud of what the federal government, states, Tribes and communities together have accomplished for fish," the agencies said in a statement releasing the opinion. "Last year alone, 9,609 miles of wetland habitat were protected and 244 miles of streams were reopened to fish. We've made much progress, and completion of this legal process now prepares us to make much more."

Conservationists had hoped the plan would be much bolder, with less emphasis on hatchery fish and stronger attention to the possibility of breaching dams on the Snake River in eastern Washington that cut off salmon from miles of pristine potential habitat.  The primary argument against the removal of dams is the negative impact on electricity generation, since the Northwest receives a significant portion of its power from hydroelectric sources.

The Columbia River Inter-Tribal Fish Commission is comprised of the fish and wildlife committees of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. The Tribes have treaty-guaranteed fishing rights and management authority in their traditional fishing areas.
 

Tribal Agreement With Boeing Produces $2 Million For Environmental Cleanup Of Ancestral Duwamish Waterway

Duwamish River Bank Near Seattle

To resolve a multi-party federal lawsuit, the Boeing Company will pay $2 million to remediate environmental damage in Seattle’s Duwamish waterway, the ancestral grounds for the Duwamish, Muckleshoot, and Suquamish Tribes. Joining as plaintiffs with several federal and state agencies, the Muckleshoot and Suquamish brought the suit to fund the cleanup of the site where Boeing built many of the B-17 bombers used during World War II. Solvents, oils and other chemicals polluted the property and leached into groundwater that migrated to the Duwamish waterway.

Boeing has agreed to undertake two habitat-restoration projects to benefit salmon and birds. The company will create nearly five acres of new wetlands, restore a half-mile of waterway, and establish a holding area for young salmon. It also will demolish several buildings that were partially constructed on pilings over the waterway during the 1930s and early 1940s. "We'll be taking the pilings out and restoring the bank," said Blythe Jameson, a spokeswoman for Boeing.

In addition to the Tribes, the settlement resolves claims against Boeing by the National Oceanic and Atmospheric Administration, the Department of Interior, U.S. Fish and Wildlife Service, the Washington State Department of Ecology, and the Washington State Department of Fish and Wildlife. The agreement includes the creation of a permanent stewardship fund for the remediation projects. Boeing says cleanup and restoration activities are scheduled to begin in 2012, and will take several years to complete.
 

Despite Tribal Opposition, US Government Approves Cape Cod Wind Farm

Secretary of the Interior Ken Salazar has approved the nation's first offshore wind farm, despite strong opposition from the Mashpee Wampanoag Tribe and environmental groups. The 130 turbines are to be located several miles from the Massachusetts shore in the waters of Nantucket Sound, which Wampanoag consider part of their sacred cultural heritage.

Salazar declared that Cape Wind, as the project is known, is the start of a "new energy frontier."
"Cape Wind will be the nation's first offshore wind farm, supplying clean power to homes and businesses in Massachusetts, plus creating good jobs here in America," he said. "This will be the first of many projects up and down the Atlantic coast."

"The United States is leading a clean energy revolution that is reshaping our future," Salazar said in announcing the project’s approval. "Cape Wind is an opening of a new chapter in that future, and we are all part of that history."

He did not make reference to another history – the Wampanoag spiritual ritual of greeting the sunrise which requires unobstructed views across the sound, and that their ancestral burial grounds are located in the area. The Wampanoag tribes — whose name translates to “people of the first light” — said their view to the east across Nantucket Sound was integral to their identity and cultural traditions. “Here is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the season,” wrote Bettina Washington, historic preservation officer for the Aquinnah Wampanoag, in a letter to federal officials. The Tribes also argued that the wind turbines, which will be 440 feet tall, could destroy long-submerged tribal artifacts from thousands of years ago, when the sound was dry land. Such artifacts could “yield further confirmation of our cultural histories,” according to Ms. Washington.
 

This Week: Tribal Law Conference At Gonzaga University

This Thursday, March 18, 2010 Gonzaga University School of Law in Spokane, Washington will be the site for a far-ranging conference on legal issues of importance to Tribal communities and their advocates. Hosted by the Indian Law Section of the Spokane County Bar Association, the conference features nationally-recognized experts in numerous areas of law that are critical to Tribes. The conference itinerary includes:

The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts)

Tribal Court Practice; Inter-Jurisdictional Issues Arising in Tribal Courts (Tribal Court practice overview; abstention, exhaustion, removal; inter-jurisdictional issues)

Labor and Employment Law Issues for Tribes (FMLA; ADA; Pension Protection Act; and Tribal Considerations in drafting Employee Policies and Procedures)

Issues Regarding Multi-Jurisdictional Regulatory Oversight

Ethical Issues Arising in Tribal and State Multi-Jurisdictional Practice of Law

Registration information is available HERE.
 

Tribes Work Through National Park Service To Block Windfarm In Traditional Native Waters

 

A controversial wind farm project to be located off Cape Cod, Massachusetts has been stalled after local Tribes convinced the National Park Service to declare Nantucket Sound eligible for listing in the National Register of Historic Places. The Mashpee Wampanoag and the Aquinnah Wampanoag applied for the listing last fall, stating that the 130 proposed wind turbines would interfere with their spiritual ritual of greeting the sunrise which requires unobstructed views across the sound, and disturb ancestral burial grounds. The project has been in development since 2001 and is supported by state authorities.

The decision by the National Park Service does not terminate the project, but it requires more negotiations and potential changes to the project and/or its location. Interior Secretary Ken Salazar set a deadline of March 1, 2010 for the Tribes and the project’s developer, Energy Management Inc., to reach a compromise. Cedric Cromwell, chairman of the Mashpee Wampanoag tribe, said the decision confirmed “what the Wampanoag people have known for thousands of years: that Nantucket Sound has significant archaeological, historic and cultural values and is sacred to our people.”

Nantucket Sound, which encompasses more than 500 square miles, is by far the largest body of water ever found eligible for listing on the national historic register. “The decision is without precedent in terms of implicating many square miles of what is, legally speaking, the high seas,” said Ian A. Bowles, the Massachusetts Secretary of Energy and Environmental Affairs.

In seeking the historical designation, the Wampanoag tribes — whose name translates to “people of the first light” — said their view to the east across Nantucket Sound was integral to their identity and cultural traditions. “Here is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the season,” wrote Bettina Washington, historic preservation officer for the Aquinnah Wampanoag, in a letter to federal officials. The Tribes also argued that the wind turbines, which would be 440 feet tall, could destroy long-submerged tribal artifacts from thousands of years ago, when the sound was dry land. Such artifacts could “yield further confirmation of our cultural histories,” according to Ms. Washington.
 

Tribes Turn To Federal Court In Pacific Fishing Rights Dispute

In a case with implications for more than twenty Tribes in the Pacific Northwest, the issue of Native American fishing rights and boundaries in the Pacific Ocean has been brought before the federal District Court for the Western District of Washington.

In an earlier proceeding, the Court determined that the Makah, Quileute, and Quinault nations had usual and accustomed fishing grounds in the Pacific Ocean. It was determined that the Makah’s usual and accustomed fishing grounds “included the waters of the Strait of Juan de Fuca . . . extending out into the ocean to an area known as Swiftsure and then south along the Pacific coast to an area intermediate to Ozette village and the Quileute Reservation,” as well as certain rivers and lakes. The Court determined that Quileute usual and accustomed grounds included certain rivers, lakes and streams and “the adjacent tidewater and saltwater areas”, and that the Quinault utilized “ocean fisheries” in “the waters adjacent to its territory.” See 384 F. Supp. at 374 (FF 120).

However, the Court did not define the precise boundaries of the nations’ “usual and accustomed fishing grounds” in the Pacific Ocean, and the Court’s decision was limited to waters within the jurisdiction of the State of Washington and within three miles of shore. The question of precise ocean boundaries for the nations’ respective fishing rights remains unresolved. The Request for Determination filed by the Makah Tribe alleges:

On the basis of the information Makah assembled in response to the threat posed by Quileute’s and Quinault’s intent to participate in the Pacific whiting fishery in the manner described above, it appears that Quileute and Quinault have authorized and currently are conducting fisheries for salmon, halibut and black cod outside of their actual usual and accustomed fishing areas. Although Makah, Quileute and Quinault have been able to resolve disputes over these fisheries in the past, the Quileute and Quinault fisheries for these species compete directly with Makah fisheries for the same species.

It is interesting to note that the nations had previously worked out such issues through direct negotiation, but now have placed the power over their respective jurisdictions and economic rights in the hands of a federal judge.
 

Tribes Sue To Improve Fish Habitat

Culvert for Fish Passage (ADF&G)

In a landmark 1974 ruling, U.S. District Judge George Boldt ruled Tribes located near Puget Sound in Washington State hold treaty rights to half the region's fish resources. Thirty-five years later, another federal judge is presiding over a Tribal lawsuit to enforce the state's obligation to actively protect fish habitat. "The judge has already found that there's a treaty right to protect fish habitat," said Robert Anderson, director of the University of Washington's Native American Law Center. The question now is "how far the federal courts are willing to go to compel that result."

U.S. District Judge Ricardo Martinez ruled in 2007 that treaty rights required the state to take action to enhance salmon runs and fish habitat. He urged the state and Tribes to work together on solutions, but negotiations proved fruitless. More than 1,000 culverts between the Columbia River and British Columbia, most of them owned by the Washington Department of Transportation, are presently blocking or limiting access by fish to hundreds of miles of streams. The cost to implement repairs and provide fish with a smooth and unobstructed water flow may exceed $1.5 billion.

"The problem is the cost is just huge," Washington State Department of Transportation Secretary Paula Hammond said. "We already don't have enough money to maintain and preserve our existing highway system." The Tribes want the culverts fixed within two decades, but state lawyers say that would cost $165 million every two years — 10 times what the state spends fixing culverts now. The state's alternative plans wouldn't likely change the costs, but the work would take 50 or more years to complete.
 

Stimulus Funds For Native American Community Water Projects Announced

The United States government has identified the following Native American and Alaska Native communities to receive $90 million in federal stimulus funds for water and wastewater projects:

Alaska - $3,918,750 for the native Village of Buckland for a lift station, sewer and forcemain, serving 105 homes.

Arizona - $1.14 million to the San Carlos Apache Tribe for regional water system improvements, serving 1,055 homes.

California - $6,371,470 to the Tule River Tribe for a wastewater treatment plant, serving 268 homes.

Kansas - $55,000 to Kickapoo Tribe to rehabilitate tanks, serving 200 homes.

Michigan - $190,600 to the Bay Mills Indian Community for pumphouse upgrades, serving 153 homes

Montana - $1,033,610 to the Crow Tribe for the first phase of a sewer lagoon, serving 564 homes.

New Mexico - $991,700 to the Mescalero Apache Tribe for a windmill water main, serving 612 homes.

New York - $349,000 to the St. Regis Mohawk Indians for water treatment plant upgrades, serving 1,146 homes.

North Carolina - $442,700 to the Eastern Band of Cherokee Indians to repair a leaking storage tank, serving 1,826 homes.

South Dakota - $1,010,300 to the Cheyenne River Sioux Tribe for backwash piping, serving 549 homes.

Utah - $139,000 to the Ute Indian Tribe to restore an old lagoon site, serving 70 homes.

Washington - $1,052,100 to Lummi Tribe for a water main, serving 1,053 homes.
 

Further program allocation details are available here.

Northwest Tribes Sue To Protect Salmon

Click for a bigger picture!

Salmon-friendly culvert - Thurston County, Washington

Nineteen Tribes have teamed up to bring federal litigation against the State of Washington to speed up the pace of dealing with more than 1,800 fish barriers associated with state highways, which block more than 3,000 miles of potential stream habitat for salmon. Washington’s legislature has funded culvert replacement since 1991, but the current pace of construction could take up to 100 years to fix the problems.

The Tribal consortium previously prevailed in litigating a preliminary issue regarding the state’s duty to protect and enhance salmon runs. In 2007, U.S. District Judge Ricardo Martinez ruled that treaties signed in the 1850s impose a duty on the state to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” Tribes and the state have worked to craft a acceptable settlement since then, but lack of progress and funding prompted a new round of claims.

Dan O’Neal, chairman of the Washington State Transportation Commission, expressed little hope for a legislative solution in the near term.

“The Legislature right now is dealing with all kinds of issues. From a transportation standpoint, revenues are down. Gas taxes aren’t producing as much revenues because people are driving less or using more efficient cars or whatever. I don’t think this thing, frankly, has percolated to the top of legislators’ lists, I don’t think they will change anything unless the court directs it.”

Obama Put To Early Test By Tribes

The new Secretary of the Interior Ken Salazar recently told Tribal leaders in Washington D.C. that "First Americans will have their place at the table in the Obama administration."  Less than 24 hours after President Obama took office, Tribes throughout America have put that policy to the test.

The Northwest Indian Fisheries Commission, which represents 20 Tribes in the Pacific Northwest including the Tulalip, Stillaguamish, and Sauk Suiattle, submitted a 16-page request to President Obama for additional funding and the adoption of a formal policy supporting Tribal management of natural resources. The Commission's request also seeks:

1. The issuance of an Executive Order reaffirming the government-to-government relationship between Tribes and the US government.

2. An additional $12 million per year in funding for the Commission and an extra $4.5 million per year for the Columbia River Inter-Tribal Fish Commission.

3. Restoration of expansive water rights to Tribes; and

4. Enhanced legal protections for Tribal resources such as salmon and shellfish.

The Commission’s requests were followed closely by a letter to the President from a group of US Senators representing Native constituencies throughout the country, seeking significant new funding for infrastructure and social/educational programs in Native communities. The Senators’ requests included:

• $1.2 billion for Tribal health facilities construction and support;

• $360 million for construction of Tribal justice infrastructure and support;

• $568 million for construction of road and bridge projects on reservations;

• $658 million for construction of Tribal schools and colleges;

• $50 million for housing construction, weatherization, and heating in Native Communities;

• $80 million for Native job training and business development;

• $600 million for water infrastructure development in Tribal lands;

• $4.4 million for energy development on reservations; and

• $50 million to address Tribal land fractionation.

The proposal was submitted by Senators Tim Johnson, D-S.D., Byron Dorgan, D-N.D., Jeff Bingaman, D-N.M., Mark Begich, D-Alaska, Thad Cochran, R-Miss., Maria Cantwell, D-Wash., Jon Tester, D-Mont., Tom Udall, D-N.M., Ron Wyden, D-Oregon, Kay Hagan, D-N.C., Lisa Murkowski, R-Alaska, Daniel Akaka, D-Hawaii, Roger Wicker, R-Miss., and Chris Dodd, D-Conn.

During his campaign, President Obama stated:

The American Indians I have met across this country will be on my mind each day that I am in the White House. You deserve a president who is committed to being a full partner with you; to respecting you, honoring you and working with you every day. That is the commitment I will make to you as President of the United States.”

On the strength of such pledges, Obama received the endorsement of over 100 Tribal leaders throughout America. The coming weeks and months will reveal the true strength behind these promises, and provide a realistic view of the future for Native communities.
 

Tribes Rally To Oppose Klamath River Dam Relicensing

At a recent public hearing in Sacramento, members of the Hoopa Valley, Yurok, Karuk, Quartz Valley, Winnemem Wintu and Miwok Tribes, recreational anglers, commercial fishermen, and environmental activists came together to oppose PacifiCorp’s application for a Section 401 clean water permit needed to re-license the dams it operates on the Klamath River. The Tribes gave detailed testimony to California state water officials that the dams have resulted in significant declines in both fish populations and water quality, and advocated for the removal of the dams.

Daina Colegove, a member of the Hoopa Valley Tribe and board member of the Klamath Riverkeeper, presented a big bottle filled with toxic blue green algae that she gathered from behind Iron Gate Dam as a “gift” to the state’s review board. “We are unable to use the river for swimming because of the toxic algae and it’s getting worse every year,” she said. “We don’t want to see another fish kill like the one we had in 2002 (when over 68,000 salmon died).”

Richard Myers, a member of the Yurok Tribal Council, testified about the impact the river’s water quality has on Tribal life and customs. “We do our ceremonies, including the World Renewal Dance, on the river. Normally we would bathe in the river during our ceremonies, but the water quality has been so terrible during periods of the toxic algae heath advisory that we are forced to bathe in the creeks instead.”

Tribal members and environmental advocates have noted steep reductions in the populations of Chinook salmon, lamprey eel and candlefish in the Klamath River, which they attribute to degradation in water quality over several years. populations to the dramatic decline in water quality on the Klamath in recent years.  “The fish are important, but the Indian people are also important,” Myers stated. “My great aunt used to have a saying: when the Klamath River dies, the Yurok people will die also. Today we depend upon the river just as our ancestors did.”

The state is now reviewing the issue through a special EIR after successful legal action filed by the Klamath Riverkeeper. The EPA now lists the algal toxin Microcystin as a pollutant, and required California to regulate PacifiCorp through an EIR. This EIR will determine if the dams are issued clean water certification known as a 401 permit, or if they are removed.

For information regarding the opposition to the dam, contact Malena Marvin, outreach and science director, Klamath Riverkeeper, cell:  541-821-7260 , phone/fax: 541-488-3553.

You can find further details on the licensing hearing.

Winnemen Wintu Fear Losing Their Heritage If Shasta Dam Raised

California’s water crisis may be eased by the U.S. Bureau of Reclamation’s plan to raise the Shasta Dam, but the Winnemen Wintu, fisheries advocates and environmentalists are opposed to the project. By raising the dam between 6 ½ and 18 ½ feet, the reservoir could provide enough water to serve Los Angeles for more than a year. The Tribe, which lost most of their ancestral land in 1945 when the dam was built, fears that this will flood the remaining one-tenth of land they have left. The land that would be lost includes two sacred rocks used in Tribal coming-of-age ceremonies.

The price of raising the dam is far less than building a new dam elsewhere. Supporters of the plan claim the project will aid with growing water needs, additional hydropower production, flood protection, and that the larger reservoir would store more cold water needed for salmon migration. However, the interests of local farmers and other supporters in raising the dam is proving contrary to the Tribe as well as conservation and environmental groups. Swelling the lower McCloud River would ruin one of California’s prized trout streams, and there is a question as to whether the cold water would actually be released for migrating salmon or is just an attempt to reinvest in the projects which caused the salmon migration problem. The environmentalists favor building salmon bypasses and paying users to increase conservation. The Bureau expects to finish its reviews of the project at Shasta Lake as well as four other possible options and distribute them for public comment early next year. Congress would then have to authorize and fund the project.

Additional information on the issues regarding the Shasta Dam may be found here via the San Francisco Gate and Indian Country Today

 

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Washington State Moves To Protect Tribal Shellfish

A pollution-control agreement between the State of Washington and cruise lines operating in the waters off Western Washington has been expanded to protect shellfish beds, and could become state law during the next year.  Coastal Tribes located near Puget Sound utilize shellfish for food, economic development activities, and cultural purposes.  The state’s prior agreement with the cruise lines allowed cruise ships to dump raw sewage near the coast, posing a significant threat to the natural habitat and the quality and quantity of Tribal shellfish harvests.

The revised agreement prohibits cruise ships carrying 250+ people from releasing sewage within 1/2 mile of commercial or Tribal shellfish beds, requires the installation of pollution monitors to detect discharges, and implements mandatory and immediate reporting requirements for improper discharges. If state lawmakers turn the agreement into law during the next legislative session, cruise ships could face fines and other penalties for not respecting the Tribal shellfish harvest.

 More information on the agreement can be found at the Northwest Indian Fisheries Commission

Water Loan Legislation Enacted For White Mountain Apache Tribe

On October 10, 2008 the President signed unanimously-approved Congressional legislation authorizing a federal loan to the White Mountain Apache Tribe for the planning and engineering of a dam and reservoir, designed to provide clean drinking water to members of the Tribe. Senate Bill 3128, the White Mountain Apache Tribe Rural Water System Loan Authorization Act, was introduced by U.S. Sen. Jon Kyl (R-Ariz.) in June and passed unanimously by the Senate on Sept. 25 and the House on Sept. 29, 2008.

The White Mountain Apache Tribe is located on the Fort Apache Indian Reservation in eastern Arizona and has approximately 15,000 members. The majority of the reservation's residents currently receive drinking water from a small well field. Well water production has significantly decreased over the last few years, leading to drinking water shortages in the hot climate. In order to meet the needs of the Tribe's growing population, a new dam and reservoir known as the Miner Flat Project will be located on the reservation to provide a long-term solution to ensure an adequate drinking water supply.

The new legislation authorizes the Secretary of Interior to provide a $9.8 million federal loan to the White Mountain Apache Tribe for the Miner Flat Project, repayable over 25 years.

The text and history of the legislation may be found via govtrack.