Nos. 06-16345, 06-16618, 06-16664

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

CONSEJO de DESARROLLO ECONOMICO de MEXICALI, A.C.;CITIZENS UNITED FOR RESOURCES AND THE ENVIRONMENT;

DESERT CITIZENS AGAINST POLLUTION,Plaintiffs/Appellants

CITY OF CALEXICO,Plaintiff

v.

UNITED STATES OF AMERICA; DIRK KEMPTHORN, SECRETARY OFTHE DEPARTMENT OF THE INTERIOR; and WILLIAM E. RI,ACTING COMMISSIONER OF THE BURAU OF RECLAMATION

Defendants/Appellees

IMPERIAL IRRGATION DISTRICT; SAN DIEGO COUNTY WATERAUTHORITY; CENTRAL ARIZONA WATER CONSER V ATION DISTRICT;

STATE OF NEVADA; SOUTHERN NEVADA WATER AUTHORITY;and COLORADO RIVER COMMISSION OF NEV ADA,

Defendants/Intervenors/Appellees

UNITED STATES' MOTION FOR REMANDFOR DISMISSAL OF COUNTS 5-8 AND

FOR V ACA TUR OF INJUNCTION PENDING APPEALDUE TO MOOTNESS

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SUE ELLEN WOOLDRIDGEAssistant Attorney GeneralEnvironment & Natural Resources Div.

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DAVID C. SHIL TONJOHNL. SMELTZERAttorneys, Department of JusticePost Office Box 23795Washington, DC 20026-3795(202)305-0343

Introduction

This case was argued and submitted on December 4, 2006. On December

20, 2006, the President signed into law the Tax Relief and Health Care Act of

2006 (hereinafter: the "new legislation"). Pub. L. No. 109-_ (H.R. 6111, 109th

Cong.) (2006)Y The new legislation contains provisions pertaining to the All-

American Canal Lining Project, the project challenged in this appeaL. Id., Div. C,

§§ 395-397 (Title III, Subtitle J) (attached). Among other things, Section 395(a)

provides that

Notwithstanding any other provision of law, upon the date ofenactment of this Act, the Secretary (of the Interior) shall, withoutdelay, carry out the All American Canal Lining Project identified -(1) as the preferred alternative in the record of decision for thatproject, dated July 29, 1994; and (2) in the allocation agreementallocating water from the All American Canal Lining Project, enteredinto as of October 10,2003.

Id., § 395(a) (emphasis added). Under this provision, the Secretary immediately

must carr out the Lining Project, notwithstanding the statutory violations alleged

by Plaintiffs-Appellants Consejo de Desarrollo Economico et at. (collectively

"CDEM") in Counts 5-8 of their First Amended Complaint. Defendants-

Appellees the United States, the Secretary of the Interior, and the Commissioner of

the Bureau of Reclamation (collectively, the "United States") therefore

11 At the time this motion was completed, a public law number had not yet been

assigned to the new legislation. The United States will provide the Court with thepublic law number when it becomes available. The complete text of the enactedbil is available at http://thomas.loc.gov/cgi-bin/bdquery/z?d1 09:h.r.06111:

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respectfully ask this Court: (1) to summarily deny CDEM's appeal on Counts 5-8

and remand those Counts to the district court for dismissal on grounds of

mootness; and (2) to immediately vacate the injunction pending appeal, which was '."

entered solely on the basis of violations alleged in Count 5 (relating to the

National Environmental Policy Act or NEP A).

Background

The Bureau of Reclamation ("Reclamation") approved the All-American

Canal Lining Project by Record of Decision ("ROD") executed on July 29, 1994.b'

3ER 604. As explained in the Answering Brieffor the United States (Oct. 20,

2006) (hereinafter" Us. Br.") (pp. 19-20), Reclamation did not immediately

proceed with Project implementation due to the need to obtain non-federal funding

from participating California Contractors, a task,complicated by longstanding

disputes between California users regarding rights and priorities to California's

share of Colorado River water (including water to be conserved by the Lining

Project).

i;)".è

b'The Answering Brief for the United States (pp. 18-19) inadvertently identified the

project approval date as "May 1994," the date on the front of the ROD (3ER 595)as opposed to the date of execution (3ER 593,604). "ER" citations are to theExcerpts of Record (Sept. 13,2006) filed by Plaintiffs-Appellants CDEM et al.

2

On October 10, 2003, the United States, various California usersJ/ and the

San Luis Rey Bands of Mission Indiansll entered into an "Allocation Agreement"

that, among other things, allocated the water to be conserved by the All-American

Canal Lining Project.2t 1SER(IID) 135-210. Following the execution of the

Allocation Agreement and related agreements, the California legislature approved

funding necessary to enable the Lining Project to proceed. See us. Br. at 20.

In Counts 5-8 of its First Amended Complaint, CDEM contends that the

United States cannot lawfully proceed with the Lining Project approved in the

1994 ROD and referenced in the 2003 Allocation Agreement unless and until

Reclamation: (1) completes a Supplemental Environmental Impact Statement

("SEIS") under Section 1 02(2)(C) ofNEP A (42 U.S.C. § 4332(2)(C)); (2) re-

initiates and completes consultation under Section 7 of the Endangered Species

J/The California parties to the Allocation Agreement are intervenor

defendants/appellees Imperial Irrigation District ("IID") and San Diego CountyWater Authority ("SDCW A"), and the Metropolitan Water District of SouthernCalifornia ("Metropolitan"), the Coachella Valley Water District, the City ofEscondido, and the Vista Irrigation District.

lIThe Bands are the La Jolla, Pala, Pauma, Rincon, and San Pasqual Bands.

2tThe Allocation Agreement defines the "All-American Canal Lining Project" as

that portion of the work authorized in Title II of Public Law 100-675 "which wilresult in a lined All-American Canal from one mile west of Pilot Knob to Drop 3."1SER(IiD) 140. This is the preferred alternative approved in the 1994 ROD. 3ER595-96. "SER(IID)" refers to the Supplemental Excerpts of Record (October 20,2006) filed by Intervenor Defendants-Appellees IID and the Central ArizonaWater Conservation District.

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Act (16 U.S.C. § 1536); and (3) takes other measures allegedly required for

compliance with the Migratory Bird Treaty Act ("MBTA") and the San Luis Rey

Indian Water Rights Sett.1ement Act ("SLRA"). The district court rejected these

arguments by final judgment entered on July 3, 2006 (2ER 541-2) and this appeal

followed. On August 10,2006, CDEM filed a motion for injunction pending

appeal, predicated solely on the alleged NEP A violations. By order dated August

24, 2006, this Court granted that motion without discussion.

Argument

A. Counts 5-8 Are Moot

An action is moot and no longer subject to the jurisdiction of the courts if,

as a result of a change in law during the course of litigation, the courts no longer

can grant effective relief. Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986,989

(9th Cir. 1999); Sierra Club v. United States Forest Serv., 93 F.3d 610, 614 (9th Cir.

1996). In the present case, Section 395 of the new legislation forecloses the

possibility of injunctive relief on Counts 5-8.2

Section 395(a) directs the Secretary to proceed with the Lining Project

"without delay" and "notwithstanding any other provision of law." Pub. L~ No.

109-_ (H.R. 6111), Div. C, § 395(a). The import of this directive is plain. To

the extent that implementation of the Lining Project conflicts with "any other

§¡Counts 5-8 are all premised on the Administrative Procedure Act, which does notprovide any action for damages. See 5 V.S.C. §§ 702,706.

4

provision oflaw" - e.g., any provision ofNEPA, the ESA, the MBTA, or the

SLRA - Congress has declared the Project exempt from those provisions and

directed the Secretary to proceed.

There is no question that Congress has the authority to exempt specific

projects from the general requirements ofNEP A, the ESA, and similar statutes.

See, e.g., Robertson v. Seattle Audubon Soc., 503 V.S. 429, 437-38 (1992)

(recognizing project-specific exemption from provisions ofMBTA, NEPA and

other statutes); Sierra Club, 93 F.3d at 614 (recognizing exemption from NEPA

requirements); Mt. Graham Coalition v. Thomas, 89 F.3d 554, 556-58 (9th Cir.

1996) and Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1457-61 (9th Cir.

1993) (recognizing exemptions from NEPA and ESA requirements).

Nor can there be any doubt that Congress intended such an exemption for

the Lining Project. There are two critical provisions in Section 395(a). First,

Congress mandated that the Secretary "shall. . . carr out" the Lining Project

"without delay" "upon the date of enactment of this Act." Pub. L. No. 109-_

(H.R. 6111), Div. C, § 395(a). This Court addressed a nearly identical directive in

Westlands Water District v. United States Dept. of the Interior, 43 F.3d 457 (9th

Cir. 1994). In that case, this Court held that statutory language directing

Reclamation to effect a new water allocation "upon enactment of this title" was the

equivalent of directing "immediate" action and presented an "irreconcilable

conflict" with NEPA's procedural obligations (which require months or years to

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complete). Id. at 460-62. Given the irreconcilable conflict, this Court determined

that the NEP A provisions did not apply. Id.

Second, even without the language mandating implementation of the Lining

Project "without delay," the other terms of Section 395 would provide an

exemption from NEP A and other statutes. Section 395 authorizes implementation

of the Lining Project "notwithstanding any other provision of law." Pub. L. No.

109- _ (H.R. 6111), Div. C, § 395(a). The provisions ofNEPA, the ESA, the

MBT A, and the SLRA upon which CDEM relies in Counts 5-8 are "other

provision(s) of law." Because the Secretary must - and therefore may - carr out

the Lining Project "notwithstanding" these "other provision(s)," this Court cannot

compel the Secretary to comply with such provisions (should this Court determine

a conflict to exist) before or in lieu of implementing the Lining Project. See Sierra

Club, 93 F.3d at 614 (reading identical phrase as exempting project from NEPA

requirements ).

Finally, the fact that Congress enacted Section 395 during the pendency of

the present litigation does not alter the legislation's effect. See Robertson, 503

U.S. at 439. While constitutional (separation of powers) concerns might arise if

Congress acts to overturn judicial findings, no such concerns arise where Congress

acts to ,moot ongoing litigation through a statutory amendment or change in law.1

7/"An act of Congress. . . intended to affect litigation" wil not raise constitutional

concerns as long as the legislation "changes the underlying substantive law in anydetectable way." The Ecology Center v. Castaneda, 426 F.3d 1144, 1150 (quoting

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Id.; Cook Inlet Treaty Tribes, 166 F.3d at 991; Mt. Graham Coalition, 89 F.3d at

557. As Judge Noonan noted in his concurring opinion in Mt. Graham Coalition,

"there is no question that Congress has the power to change the law so as to

deprive an injunction of further effect." Id., 89 F.3d at 559 (Noonan, J.,

~oncurring); see also Stop H-3 Ass'n v. Dole, 870 F.2d 1419,1431 (9th Cir. 1989)

(stating that there is "nothing ilegitimate about a decision to enact legislation

exempting a particular project, the subject of pending litigation, from the

requirements of existing statutes"). Here, Congress has permissibly exercised its

power to change the law to enable the Lining Project to proceed, notwithstanding

alleged violations ofNEPA, the ESA, MBTA, and SLRA.

B. There Is No Basis for Continuing the Injunction Pending Appeal

Because Counts 5-8 are moot, there is no basis for continuing the injunction

pending appeaL. Although the present appeal involves constitutional claims by

CDEM (relating to Counts 1-4 of the First Amended Complaint) that are not

rendered moot by the new legislation,~ CDEM did not rely on those claims in its

"'¡

Gray v. First Winthrop Corp., 989 F.2d 1564, 1568 (9th Cir. 1993)) (emphasisadded); accord Cook Inlet Treaty Tribes, 166 F.3d at 991.

~Congress cannot by ordinary legislation abrogate constitutional rights, if any, thatCDEM might possess. On the other hand, the Congressional directive in Section395 to conserve the seepage water from the All-American Canal (Pub. L. No. 109-_ (H.R. 6111), Div. C, § 395) - as well as the provisions in Section 397

regarding the 1944 Treaty (id., § 397) - provide further support for the UnitedStates' argument that CDEM's water-rights claims in Counts 1-4 present non-justiciable political questions. See Us. Br. at 31, 47-50; see also n. 11, infa.

7

Motion for Injunction Pending Appeal (August 10, 2006). Rather, CDEM moved

for the injunction pending appeal solely on the grounds of the NEP A claims

(asserted in Count 5).2/ Id. Accordingly, this Court's August 24,2006 order

granting CDEM's motion is likewise predicated solely on the NEP A claims, which

are now moot.

Equally important, CDEM's arguments under Counts 1-4 do not provide an

alternative basis for injunctive relief. CDEM concedes that Counts 1-4 are

predicated on the Takings Clause of the Fifth Amendment. See Consolidated

Reply Brief(Oct. 27, 2006) at 12-16. As explained in the United States' Brief

(US. Br. at 42), the Takings Clause "is designed 'not to limit the governmental

interference with propert rights per se, but rather to secure compensation in the

event of otherwise proper interference amounting to a taking.'" Nevada Land

Action Ass 'n v. Us. Forest Service, 8 F.3d 713, 720 (9th Cir. 1993) (quoting

Presault v. ICC, 494 U.S. 1, 11 (1990)). This Court has no jurisdiction to enjoin'

Congressionally authorized action alleged to effect a taking, "where Congress has

provided a.means for paying compensation for any taking that might have

2/While CDEM noted in its motion that all eight counts of the First Amended

Complaint were implicated in its appeal, CDEM asserted that "this motion reliesjust on the NEP A claim." Motion at 4, n. 1.

8

occurred.".! AK Native Village Corporation v. AHTNA, Inc., 105 F.3d 1281, 1285

(9th Cir. 1997).

Through Section 395 of the new legislation (Public Law No. 109-_ (H.R.

6011), Div. C), Congress has reiterated its directive to the Secretary to conserve

All-American Canal seepage for beneficial use in the United States (see Us. Brief

at 12-14) and directed the Secretary to proceed "without delay" with the

conservation project identified as the preferred alternative in the i 994 ROD.

Assuming, arguendo, that such action could somehow be deemed to effect a Fifth

Amendment taking within the jurisdiction of U.S. courts,ll CDEM's exclusive

remedy for such taking would be an action for "just compensation" under the

.!CDEM cannot avoid this rule simply by alleging that damages (or the payment

of "just compensation") would be "inadequate" to remedy the alleged taking ofalleged propert rights in All-American Canal seepage. Just compensation is theexclusive remedy for a taking. See, e.g., Duke Power Co. v. CarolinaEnvironmental Study Group, Inc., 438 U.S. 59,94 n. 39 (1978) (noting that wherea Tucker Act remedy is available, a "constitutional challenge. . . under the JustCompensation Clause must faiL") The only exception is where Congresssimultaneously authorizes a taking and prohibits the payment of just compensationthrough the removal of the Tucker Act remedy. See Eastern Enterprises v. Apfel524 U.S. 498, 521-22 (1998) (O'Connor, J., plurality opinion) (finding injunctionto be an appropriate remedy where Tucker Act remedy is unavailable).

llAs explained in the United States' brief: (1) CDEM does not possess and cannotobtain a property interest in All-American Canal seepage under U.S. law or the1944 Treaty with Mexico, see Us. Br. at 35-38; (2) CDEM's claims to such watercannot be adjudicated by this Court, due to the absence of any applicable waiverof sovereign immunity, and the non-justiciable nature of the claims (under thepolitical-question doctrine), id. at 39-50; and (3) the Fifth Amendment does notreach property interests claimed in Mexico, id. at 41, n.8.

~c~

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Tucker Act. CDEM has not alleged (and cannot show) that Congress removed the

Tucker Act remedy under the SLRA (when authorizing the Lining Project). Nor is

there anything in the new legislation that removes the Tucker Act remedy.

Conclusion

For the foregoing reasons, the United States respectfully asks this Court to

(1) summarily deny CDEM's appeal as to Counts 5-8 of the First Amended

Complaint; (2) remand Counts 5-8 to the district court with instructions that the

district court dismiss the claims as moot; and (3) immediately vacate the

injunction pending appeal, given the absence of any remaining basis for such

injunction.

Respectfully submitted,

SUE ELLEN WOOLDRIDGEAssistant Attorney General

~~~JOHNL. SMELTZDAVID C. SHIL TONAttorneys, Appellate SectionEnvironment &Natural Resources DivisionU.S. Department of JusticeP.O. Box 23795Washington, DC 20026-3795(202) 305-0343

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing United States' Motion for

Remand For Dismissal of Counts 5-8 and For Vacatur of Injunction Pending

Appeal Due to Mootness has been served, this jJd- day of December, 2006,. wvia United States mail and courtesy electronic service, to all counsel of record, as

indicated on the attached service list.

11

SERVICE LIST for Ninth Cir. Nos. 06-16345, 06-16618,06-16664

Counsel for PlaintifAppellant Cònsejo de

Desarrollo Economonico de Mexicali, A. C.

R. Gaylord SmithSheri SchwartzLewis, Brisbois, Bisgaard& Smith, LLP550 W "C" St. Ste. 800San Diego, CA 92101(619) 233-1006smith~lbbslaw.com

Jay F. SteinStein & Brockman, P A460 St. Michaels Drive, Suite 603Santa Fe, NM 87505(505) 983-3880ifstein~newmexicowaterlaw .com

Counsel for PlaintifAppellant Citizens

United for Resources and the Environment

Wiliam J. Snape, IILaw Office of Willam J. Snape, II5268 Watson St., NWWashington, DC 20016(202) 537-3458bilsnape(?earthlink.net

Counsel for PlaintifAppellant Desert

Citizens Against Pollution

Gideon KracovLaw Office of Gideon Kracov801 S. Grand Avenue, 18th FloorLos Angeles, CA 90017(213) 629-2071gk~gideonlaw.net

Counsel for Intervenor-PlaintifAppellant

City of Calexico

Steven E. BoehmerMcDougal Love & Eckis460 N. Magnolia AveEI Cajon, CA 92020(619) 440-4444sboehmer~mclex.com

Counsel for Intervenor-Defendant Imperial

Irrigation District

John P. CarterWiliam H. SwanHorton, Knox, Carter & Foote895 Broadway, Suite 101EI Centro, CA 92243(760) 482-9651icarter~hkcf- law .com

whswan~aol.com

Anthony GeuntherMcDonald, Carano, Wilson2300 W. Sahara Ave,No. 10, Suite 1000Las Vegas, NV 89102

(702) 873-4100aguentherCfmcdonaldcarano.com

David L. OsiasMark 1. HattamAllen, Matkins, Leek, Gamble,Mallory & Natsis, LLP501 W. Broadway15th FloorSan Diego, CA 92101-3541(619) 233-1155dosias~aiienmatkins.commhattam~allenmatkins.com

Counsel for Intervenor-Defendant SanDiego County Water Authority

Daniel S. HentschkeSan Diego County Water Authority4677 Overland AvenueSan Diego, CA 92123(858) 522-6600dhentschke~sdcwa.org

James D. HibbardBullivant Houser Bailey, PC3980 Howard Hughes PkwySuite 550Las Vegas, NV 89101

(702) 650-6565i im.hibbard~bullivant.com

Steven L. HochHatch & Parent11911 San Vicente Blvd.Suite 350Los Angeles, CA 90049

(310) 500-4600shoch~hatchparent.com

Counsel for Intervenor-Defendant Central

Arizona Water Conservation District

Virginia S. AlbrechtHunton & Wiliams1900 K Street, NWWashington, DC 20036(202) 955-1500valbrecht~hunton.com

Douglas W. Miler

Central Arizona ProjectPO Box 4302023636 N. 7th StreetPhoenix, AZ 85080(623) 869-2366dkmillerêcap-az.com

Kathy RobbHunton & Wiliams LLP200 Park AvenueNew York, NY 10166-0136(212) 309-1128krobb~hunton.com

Kevin R. StolworthyJones Vargas3773 Howard Hughes PkwyThird Floor SouthLas Vegas, NV 89109

(702) 862-3300krs~ionesvarg:as.com

Counsel for Intervenor-Defendant State of

Nevada; Southern Nevada Water Authority;And Colorado River Commission of Nevada

Jennifer T. Crandell555 E. Washington AveSuite 3100Las Vegas, NV 89101

(702) 486-2673i crande~ag.state.nv. us

James TaylorSouthern Nevada Water Authority1001 S. Valley View BlvdLas Vegas, NV 89153

(702) 258-7167iames. taylor~ivvwd.com

Counsel for Amicus-Curiae Government ofMexico

Sheldon H. Sloan11111 Santa Monica Blvd., Suite 230Los Angeles, CA 90025

(310) 268-0622ssloanlaw~aol.com

Counsel for Amicus-Curiae State of BajaCalifornia, Mexico

Robert Vera AvarUndersecretary of State for Legal MattersThe State of Baja California, MexicoCalzada Independencia 994Centro Civico

Mexicali, Baja California01155-686-558-1087

Counsel for Amicus-Curiae Defenders ofWildlife

Kara GilonDefenders of Wildlife824 Gold Avenue SWAlbuquerque, NM 87102(505) 248-0118kgilon~defenders.org

Counsel for State of California

Clifford T. LeeOffice of the California Attorney Gen.455 Golden Gate Ave.,Suite 11000San Francisco, CA 94102-7004(415) 703-5527cliff..ee~doi .cfa.gov

Counsel for the Metropolian Water Districtof Southern California

Nancy L. AllfParsons, Behle & Latimer411 E. Bonnevile Ave.Suite 300Las Vegas, NV 89101(702) 384-3877nallf~parsons behle.com

Linus MasouredisDeputy General CounselMetropolitan Water District ofSouthern California1121 "L" StreetSuite 900Sacramento, CA 95814(916) 650-2670ImasouredisCBm wdh20 .com

Counsel for State of Arizona

Michael B WixomSmith Larsen & Wixom1935 Vilage Center Cr

Hil Center Business Park

Las Vegas, NV 89134(702) 252-5002mbw(Qslwlaw.com

Counsel for La Jolla, Rincon, San Pasqual,Pauma, and Pala Bands of Mission Indians

David A. Hornbeck1675 Lakeside Dr.

Reno, NV 89509(775) 323-6655davidhornbecklaw(Qmsn.com

Joseph R. MembrinoHall, Estil, Hardwick,Gable, Golden & Nelson1120 20th Street, NWNorth TowerSuite 700Washington, DC 20036(202) 973-1200imem brino~hallestil.com :,":"1;-

;"")(

Attachment

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H. R. 6111

(Enr iRundrrd Rinth Q:ongrrss

of thr~nitrd ~tatrs of 2lmrrica

AT THE SECOND SESSION

Begun and held at the City of Washingon on Tuesday,the third day of January, two thousand and six

51n 51ctTo amend the Internal Revenue Code of 1986 to extend expiring provisions, and

for other purposes.

Be it enacted by the Senate and House of Representatives ofthe United States of America in Congress assembled,SECTION 1. SHORT TITLE, ETC.

(a) SHORT TITLE.-This Act may be cited as the "Tax Reliefand Health Care Act of 2006".

(b) TABLE OF CONTENTS.-The table of contents for this Actis as follows:Sec. 1. Short title, etc.

DIVISION A-EXTENSION AND EXPANSION OF CERTAIN TAX RELIEFPROVISIONS, AND OTHER TAX PROVISIONS

Sec. 100. Reference.

TITLE I-EXTENSION AND MODIFICATION OF CERTAIN PROVISIONS

Sec. 101. Deduction for qualied tuition and related expenses.Sec. 102. Extension and modification of new markets tax credit.Sec. 103. Election to deduct State and local general sales taxes.Sec. 104. Extension and modification of research credit.Sec. 105. Work opportunity tax credit and welfare-to-work credit.Sec. 106. Election to include combat pay as earned income for purposes of earned

income credit.Extension and modification of qualified zone academy bonds.Above-the-line deduction for certain expenses of elementary and sec-

ondary school teachers.Extension and expansion of expensinç- of brown fields remediation costs.Tax incentives for investment in the District of Columbia.Indian employment tax credit.Accelerated depreciation for business property on Indian reservations.Fifeen-year straight-line cost recovery for qualified leasehold improve-

ments and qualified restaurant property.Cover over of tax on distiled spints.Parity in application of certain limits to mental health benefits.Corporate donations of scientific property used for research and of com-

puter technology and equipment.Availabilty of medical savings accoùnts.Taxable income limit on percentage depletion for oil and natural gas pro-

duced from marginal properties.American Samoa economic development credit.Extension of bonus depreciation for certain qualified Gulf Opportunity

Zone property.Authority for undercover operations.Disclosures of certain tax return information.Special rule for elections under expired provisions.

TITLE II-ENERGY TAX PROVISIONS

Credit for electricity produced from certain renewable resources.Credit to holders of clean renewable energy bonds.Performance standards for sulfur dioxide removal in advanced coal-basedgeneration technology units designed to use subbituminous coaL.

Sec. 107.Sec. 108.

Sec. 109.Sec. 110.Sec. 111.Sec. 112.Sec. 113.

Sec. 114.Sec. 115.Sec. 116.

Sec. 117.Sec. 118.

Sec. 119.Sec. 120.

Sec. 121.Sec. 122.Sec. 123.

Sec. 201.Sec. 202.Sec. 203.

Deduction for energy effcient commercial buildings.Credit for new energy effcient homes.Credit for residential energy effcient property.Energy credit.Special rule for qualified methanol or ethanol fueL.Special depreciation allowance for cellulosic biomass ethanol plant prop-

erty.Expenditures pennitted from the Leaking Underground Storage TankTrust Fund.

Treatment of coke and coke gas.

TITLE II-HEALTH SAVINGS ACCOUNTSSec. 301. Short title.Sec. 302. FSA and HRA tenninations to fund HSAs.Sec. 303. Repeal of annual deductible limitation on HSA contributions.Sec. 304. Modification of cost-of-living adjustment.Sec. 305. Contribution limitation not reduced for part-year coverage.Sec. 306. Exception to requirement for employers to make comparable health sav-

ings account contributions.Sec. 307. One-time distribution from individual retirement plans to fund HSAs.

TITLE IV-OTHER PROVISIONS

Deduction allowable with respect to income attributable to domestic pro-duction activities in Puerto Rico.

Credit for prior year minimum tax liabilty made refundable after periodof years.

Returns required in connection with certain options.Partial expensing for advanced mine safety equipment.Mine rescue team training tax credit.Whistleblower refonns.Frivolous tax submissions.Addition of meningococcal and human papilomavirus vaccines to list oftaxable vaccines.

Clarification of taxation of certain settlement funds made penn anent.Modification of active business definition under section 355 made penna-

nent.Revision of State veterans limit made penn anent.Capital gains treatment for certain self-created musical works made per-

manent.Reduction in minimum vessel tonnage which qualifies for tonnage taxmade penn anent.

Modification of special arbitrage rule for certain funds made pennanent.Great Lakes domestic shipping to not disqualify vessel from tonnage tax.Use of qualified mortgage bonds to finance residences for veterans with-

out regard to first-time homebuyer requirement.Exclusion of gain from sale of a principal residence by certain employees

of the intellgence community.Sale of property by judicial offcers.Premiums for mortgage insurance.Modification of refunds for kerosene used in aviation.Regional income tax agencies treated as States for purposes of confiden-

tiality and disclosure requirements.Desil(nation of wines by semi-generic names.Modification of railroad track maintenance credit.Modification of excise tax on unrelated business taxable income of chari-

table remainder trusts.Sec. 425. Loans to qualifed continuing care facilties made pennanent.Sec. 426. Technical corrections.

DIVISION B-MEDICARE AND OTHER HEALTH PROVISIONSSec. 1. Short title of division.

TITLE I-MEDICARE IMPROVED QUALITY AND PROVIDER PAYMENTS

Sec. 101. Physician payment and quality improvement.Sec. 102. Extension of floor on Medicare work geographic adjustment.Sec. 103. Update to the composite rate component of the basic case-mix adjusted

prospective payment system for dialysis servces.Sec. 104. Extension of treatment of certain physician pathology services under

Medicare.Sec. 105. Extension of Medicare reasonable costs payments for certain clinical diag-

nostic laboratory tests furnished to hospital patients in certain ruralareas.

Sec. 204.Sec. 205.Sec. 206.Sec. 207.Sec. 208.Sec. 209.

Sec. 210.

Sec. 211.

Sec. 401.

Sec. 402.

Sec. 403.Sec. 404.Sec. 405.Sec. 406.Sec. 407.Sec. 408.

Sec. 409.Sec. 410.

Sec. 411.Sec. 412.

Sec. 413.

Sec. 414.Sec. 415.Sec. 416.

Sec. 417.

Sec. 418.Sec. 419.Sec. 420.Sec. 421.

Sec. 422.Sec. 423.Sec. 424.

.

H. R. 6111-2

r..,__~,-i.,

H.R.6iii-3Hospital Medicare reports and clarifications.Payment for brachytherapy.Payment process under the competitive acquisition program (CAP).Quality reporting for hospital outpatient servces and ambulatory surgicalcenter services.

Reporting of anemia quality indicators for Medicare part B cancer anti-anemia drugs.

Clarification of hospice satellte designation.

TITLE II-MEDICARE BENEFICIARY PROTECTIONS

Sec. 201. Extension of exceptions process for Medicare therapy caps.Sec. 202. Payment for administration of part D vaccines.Sec. 203. OIG study of never events.Sec. 204. Medicare medical home demonstration project.Sec. 205. Medicare DRA technical corrections.Sec. 206. Limited continuous open enrollment of original medicare fee-for-service

enrollees into Medicare Advantage non-prescription drug plans.

TITLE II-MEDICARE PROGRAM INTEGRITY EFFORTS

Offsetting adjustment in Medicare Advantage Stabilzation Fund.Extension and expansion of recovery audit contractor program under theMedicare Integrty Program.

Funding for the Health Care Fraud and Abuse Control Account.Implementation funding.

TITLE IV-MEDICAID AND OTHER HEALTH PROVISIONS

Extension of Transitional Medical Assistance (TMA) and abstinence edu-cation program.

Grants for research on vaccine against Valley Fever.Change in threshold for Medicaid indirect hold harmless provision of

broad-based health care taxes.DSH allotments for fiscal year 2007 for Tennessee and Hawaii.Certain Medicaid DRA technical corrections.

Sec. 106.Sec. 107.Sec. lOS.Sec. 109.

Sec. llO.

Sec. Ill.

Sec. 301.Sec. 302.

Sec. 303.Sec. 304.

Sec. 401.

Sec. 402.Sec. 403.

Sec. 404.Sec. 405.

Sec. 101.Sec. 102.Sec. 103.

Sec. 104.Sec. 105.

DIVISION C-OTHER PROVISIONS

TITLE I-GULF OF MEXICO ENERGY SECURITY

Short title.Definitions.Offshore oil and gas leasing in lSl Area and lSl south Area of Gulf of

Mexico.Moratorium on oil and gas leasing in certain areas of Gulf of Mexico.Disposition of qualified outer Continental Shelf revenues from lSl Area,

lSl south Area, and 2002-2007 planning areas of Gulf of Mexico.

TITLE II-SURFACE MINING CONTROL AND RECLAMTION ACTAMENDMENTS OF 2006

Sec. 200. Short title.

Subtitle A-Mining Control and ReclamationAbandoned Mine Reclamation Fund and purposes.Reclamation fee.Objectives of Fund.Reclamation of rural land.Liens.Certification.Remining incentives.Extension of limitation on application of prohibition on issuance of per-

mit.Tribal regulation of surface coal mining and reclamation operations.

Subtitle B-Coal Industry Retiree Health Benefit Act

Certain related persons and successors in interest relieved of liabilty ifpremiums prepaid.

Sec. 212. Transfers to funds; premium relief.Sec. 213. Other provisions.

TITLE II-WHITE PINE COUNTY CONSERVATION, RECREATION, ANDDEVELOPMENT

Sec. 301. Authorization of appropriations.

Sec. 201.Sec. 202.Sec. 203.Sec. 204.Sec. 205.Sec. 206.Sec. 207.Sec. 20S.

Sec. 209.

Sec. 211.

H. R. 6111-4

Sec. 302. Short title.Sec. 303. Definitions.

Subtitle A-Land DisposalSec. 311. Conveyance of White Pine County, Nevada, land.Sec. 312. Disposition of proceeds.

Subtitle B-Wilderness AreasSec. 321. Short title.Sec. 322. Findings.Sec. 323. Additions to National Wilderness Preservation System.Sec. 324. Administration.

Sec. 325. Adjacent management.Sec. 326. Miltary overfights.Sec. 327. Native American cultural and religious uses.Sec. 328. Release of wilderness study areas.Sec. 329. Wildlife management.Sec. 330. Wildfire, insect, and disease management.Sec. 331. Climatological data collection.

Subtitle C-Transfers of Administrative JurisdictionSec. 341. Transfer to the United States Fish and Wildlife Service.Sec. 342. Transfer to the Bureau of Land Management.Sec. 343. Transfer to the Forest Servce.Sec. 344. Availabilty of map and legal descriptions.

Subtitle D-Public ConveyancesSec. 351. Conveyance to the State of Nevada.Sec. 352. Conveyance to White Pine County, Nevada.

Subtitle E-Silver State OfT-Highway Vehicle Trail

Sec. 355. Silver State ofT-highway vehicle traiL.

Subtitle F-Transfer of Land to Be Held in Trust for the Ely Shoshone Tribe.

Sec. 361. Transfer ofland to be held in trust for the Ely Shoshone Tribe.

Subtitle G-Eastern Nevada Landscape Restoration Project.Sec. 371. Findings; purposes.Sec. 372. Definitions.Sec. 373. Restoration project.

Subtitle H-Amendments to the Southern Nevada Public Land Management Act of1998

Sec. 401.Sec. 402.Sec. 403.

Sec. 404.

Sec. 405.Sec. 406.Sec. 407.

Sec. 381. Findings.Sec. 382. Availabilty of special account.

Subtitle I-Amendments to the Lincoln County Conservation, Recreation, andDevelopment Act of 2004

Sec. 391. Disposition of proceeds.

Subtitle J-All American Canal Projects

Sec. 395. All American Canal Lining Project.Sec. 396. Regulated storage water facilty.Sec. 397. Application oflaw.

TITLE IV-OTHER PROVISIONSTobacco personal use quantity exception to not apply to delivery sales.Ethanol Tariff Schedule.Withdrawal of certain Federal land and interests in certain Federal land

from location, entry, and patent under the mining laws and dispositionunder the mineral and geothermal leasing laws.

Continuing eligibilty for certain students under District of ColumbiaSchool Choice Program.

Study on Establishing Uniform National Database on Elder Abuse.Temporary duty reductions for certain cotton shirting fabric.Cotton Trust Fund.

H. R. 6111-125

Tahoe Basin (to be developed in conjunction with theTahoe Regional Planning Agency), the Carson Rangein Douglas and Washoe Counties and Carson City inthe State, and the Spring Mountains in the State,that are-

"(1) subject to approval by the Secretary; and"(II) not more than 10 years in duration;";

and(B) by inserting after subparagraph (C) the following:"(D) TRASFER REQUIREMENT.-Subject to such terms

and conditions as the Secretary may prescribe, and notwith-standing any other provision oflaw-

"(i) for amounts that have been authorized forexpenditure under subparagraph (A)(iv) but not trans-ferred as of the date of enactment of this subparagraph,the Secretary shall, not later than 60 days after arequest for funds from the applicable unit of localgovernment or regional governmental entity, transferto the applicable unit of local government or regionalgovernmental entity the amount authorized for theexpenditure; and

"(ii for expenditures authorized under subpara-graph (A)(iv) that are approved by the Secretary, theSecretary shall, not later than 60 days after a requestfor funds from the applicable unit of local governmentor regional governmental entity, transfer to theapplicable unit of local government or regional govern-mental entity the amount approved for expenditure.";and

(2) by adding at the end the following:"(4) LIMITATION FOR WASHOE COUNTY.-Until December 31,

2011, Washoe County shall be eligible to nominate for expendi-ture amounts to acquire land (not to exceed 250 acres) anddevelop 1 regional park and natural area.".

y.

Subtitle I-Amendments to the LincolnCounty Conservation, Recreation, andDevelopment Act of 2004

SEC. 391. DISPOSITION OF PROCEEDS.

Section 103(b)(2) of the Lincoln County Conservation, Recre-ation, and Development Act of 2004 (Public Law 108-424; 118Stat. 2405) is amended by inserting "education, planning," after"social services,".

Subtitle J-Al~ American Canal Projects!~~~-

SEC. 395. ALL AMRICAN CANAL LING PROJECT.

(a) DUTIES OF THE SECRETARY.-Notwithstanding any otherprovision of law, upon the date of enactment of this Act, the Sec-retary shall, without delay, carry out the All American Canal LiningProject identified-

(1) as the preferred alternative in the record of decisionfor that project, dated July 29, 1994; and

H. R. 6111-126

(2) in the allocation agreement allocating water from theAll American Canal Lining Project, entered into as of October10,2003.(b) DUTIES OF COMMISSIONER OF RECLAMATION.-

(1) IN GENERAL.-Subject to paragraph (2), if a State con-ducts a review or study of the implications of the All AmericanCanal Lining Project as carred out under subsection (a), uponrequest from the Governor of the State, the Commissionerof Reclamation shall cooperate with the State, to the extentpracticable, in carrying out the review or study.

(2) RESTRICTION OF DELAY.-A review or study conductedby a State under paragraph (1) shall not delay the carrngout by the Secretary of the All American Canal Lining Project.

SEC. 396. REGULTED STORAGE WATER FACILITY.

(a) CONSTRUCTION, OPERATION, AND MAINTENANCE OFFACILITY.-Notwithstanding any other provision of law, upon thedate of enactment of this Act, the Secretary shall, without delay,pursuant to the Act of January 1, 1927 (44 Stat. 1010, chapter47) (commonly known as the "River and Harbor Act of 1927"),as amended, design and provide for the construction, operation,and maintenance of a regulated water storage facility (includingall incidental works that are reasonably necessary to operate thestorage facilty) to provide additional storage capacity to reducenonstorable flows on the Colorado River below Parker Dam.

(b) LOCATION OF FACILITY.-The storage facilty (including allincidental works) described in subsection (a) shall be located ator near the All American CanaL.SEC. 397. APPLICATION OF LAW.

The Treaty between the United States of America and Mexicorelating to the utiization of waters of the Colorado and TijuanaRivers and of the Rio Grande, and supplementary protocol signedNovember 14, 1944, signed at Washington February 3, 1944 (59Stat. 1219) is the exclusive authority for identifying, considering,analyzing, or addressing impacts occurrng outside the boundaryof the United States of works constructed, acquired, or used withinthe territorial limits ofthe United States.

TITLE IV-OTHER PROVISIONSSEC. 401. TOBACCO PERSONAL USE QUANITY EXCEPTION TO NOT

APPLY TO DELIVRY SALES.

(a) DEFINITIONS.-Section 801 of the Tariff Act of 1930 (19.U.S.C. 1681) is amended by adding at the end the following:

"(3) DELIVRY SALE.-The term 'delivery sale' means anysale of cigarettes or a smokeless tobacco product to a consumerif-

"(A) the consumer submits the order for such saleby means of a telephone or other method of voice trans-mission, the mail, or the Internet or other online service,or the seller is otherwise not in the physical presenceof the buyer when the request for purchase or order ismade; or

"(B) the cigarettes or smokeless tobacco product isdelivered by use of a common carrier,private deliveryservce, or the mail, or the seller is not in the physical

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