oversight

Indian Issues: Spokane Tribe's Additional Compensation Claim for the Grand Coulee Dam

Published by the Government Accountability Office on 2003-10-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                            United States General Accounting Office

GAO                         Testimony
                            Before the Committee on Indian Affairs,
                            U.S. Senate


For Release on Delivery
Expected at 2:00 p.m. EDT
Thursday, October 2, 2003   INDIAN ISSUES
                            Spokane Tribe’s Additional
                            Compensation Claim for the
                            Grand Coulee Dam
                            Statement for the Record by Robert A. Robinson,
                            Managing Director, Natural Resources and Environment




GAO-04-125T 

                                                October 2, 2003


                                                INDIAN ISSUES

                                                The Spokane Tribe's Additional
Highlights of GAO-04-125T, a statement          Compensation Claim for the Grand
for the record for the Committee on Indian
Affairs, United States Senate                   Coulee Dam



The Grand Coulee Dam was                        A settlement with the Spokane tribe along the lines provided to the Colville
constructed on the Columbia River               tribes would likely necessitate a small increase in Bonneville’s rates for
in northeastern Washington State                power. While the rate increase would amount to less than 20 cents per
from 1933 to 1942. The reservoir                month per household, it comes at a time when (1) Bonneville’s customers
behind the dam covers land on the               have already absorbed rate increases, including those announced on October
Colville Reservation along the
Columbia River and land on the
                                                1, 2003, of over 40 percent and (2) the economy of the northwestern region,
adjacent Spokane Reservation                    Bonneville’s primary service area, is experiencing difficulties. However, the
along both the Columbia and                     bulk of Bonneville’s obligations in any settlement similar to the Colville
Spokane rivers. Under a 1940 act,               settlement will occur in the future, when the conditions causing Bonneville’s
the federal government paid                     current financial difficulties—such as costly long-term contracts to purchase
$63,000 and $4,700 to the Colville              power from other suppliers—will probably have abated. Therefore,
and Spokane tribes, respectively,               Bonneville’s current financial difficulties should not unduly influence
for the land used for the dam and               current discussions about how to compensate the Spokane tribe.
reservoir. Subsequently, the
Colville tribes pursued additional              A reasonable case can be made to settle the Spokane tribe’s case along the
claims for their lost fisheries and             lines of the Colville settlement—a one-time payment from the U.S. Treasury
for “water power values” and in
1994 were awarded a lump sum
                                                for past lost payments for water power values and annual payments
payment of $53 million and,                     primarily from Bonneville. Bonneville continues to earn revenues from the
beginning in 1996, annual payments              Spokane Reservation lands used to generate hydropower. However, unlike
that have ranged between $14                    the Colville tribes, the Spokane tribe does not benefit from these revenues.
million to $21 million. The                     Spokane does not benefit because it missed its filing opportunity before the
Spokane tribe is currently pursuing             Indian Claims Commission. At that time, it was pursuing other avenues to
similar claims.                                 win payments for the value of its land for hydropower. These efforts would
                                                ultimately fail. Without congressional action, it seems unlikely that a
S. 1438, introduced in July 2003, is            settlement for the Spokane tribe will occur.
a proposed legislative settlement
for the Spokane tribe’s claims.
While settlement proposals
introduced in the 106th and 107th
Congresses directed the settlement
costs to be split between
Bonneville and the Treasury, S.
1438 provides that the settlement
be paid entirely from the Treasury.

This statement for the record
addresses the (1) impact of a
settlement on Bonneville if the
costs were split between
Bonneville and the Treasury and
(2) possible allocation of these
costs between Bonneville and the
Treasury.
www.gao.gov/cgi-bin/getrpt?GAO-04-125T.

To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Robert A.
Robinson at (202) 512-9894 or
robinsonr@gao.gov.
Mr. Chairman and Members of the Committee:

We are pleased to have the opportunity to comment on the Spokane tribe’s
additional compensation claim for the Grand Coulee Dam and the
proposed legislative settlement, S. 1438. As you know, the Grand Coulee
Dam was constructed on the Columbia River in northeastern Washington
State from 1933 to 1942. When finished, the 550-foot high dam was the
largest concrete dam in the world. It is still the largest hydroelectric
facility in the United States. The Franklin D. Roosevelt Reservoir, which
was created behind the dam, extends over 130 miles up the Columbia River
and about 30 miles east along the Spokane River. The reservoir covers land
on the Colville Reservation along the Columbia River and land on the
adjacent Spokane Reservation along both the Columbia and Spokane
rivers. Under a 1940 act, the federal government paid $63,000 and $4,700 to
the Colville and Spokane tribes, respectively, for the land used for the dam
and reservoir.1

Subsequently, the Colville tribes pursued additional claims for their lost
fisheries and for “water power values” (i.e., a share of the hydropower
revenues generated by the dam from the use of their lands) before the
Indian Claims Commission. The Colville tribes’ fisheries claim was settled
in 1978 for about $3.3 million. Under a 1994 act—the Confederated tribes
of the Colville Reservation Grand Coulee Dam Settlement Act (P.L. 103-436,
Nov. 2, 1994)—the Colville tribes were awarded a lump sum payment of $53
million for lost hydropower revenues and, beginning in 1996, annual
payments that have ranged between $14 million and $21 million for their
water power values claim.2 The lump sum payment was made from the
U.S. Treasury, and the cost of the annual payments is shared between the
Bonneville Power Administration (Bonneville), which markets the power
generated at the dam, and Treasury.

The Spokane tribe is currently pursuing similar claims. S. 1438, introduced
in July 2003, is a proposed legislative settlement for the Spokane tribe’s
claims. While settlement proposals introduced in the 106th and 107th


1
 Pub. L. No. 76-690, 54 Stat. 703 (1940), an act for the acquisition of Indian lands for the
Grand Coulee Dam and Reservoir, and for other purposes, granted the United States title to
Indian lands the Secretary of the Interior designated as necessary for the Grand Coulee Dam
project and authorized the Secretary to determine the appropriate amount to be paid to the
tribes for lands so designated.
2
Pub. L. No. 103-436, 108 Stat. 4577 (1994).




Page 1                                    GAO-04-125T Spokane Tribe’s Compensation Claim
Congresses directed the settlement costs to be split between Bonneville
and the U.S. Treasury, S. 1438 provides that the settlement be paid entirely
out of the U.S. Treasury.3 In this context, you asked us to address the (1)
impact of a settlement on Bonneville if the costs were split between
Bonneville and the U.S. Treasury and (2) possible allocation of settlement
costs between Bonneville and the U.S. Treasury. To meet these objectives,
we relied on information developed for a preliminary GAO report to the
Subcommittee on Energy and Water Development, House Committee on
Appropriations;4 interviewed officials at Bonneville and representatives of
the Spokane tribe; and reviewed numerous documents on the Colville and
Spokane tribes’ claims for additional compensation. Our work for the
Appropriations Subcommittee on Bonneville’s financial condition is
continuing. We plan to issue our final report in June 2004. Also, as you
know, we are continuing our review of Bonneville’s obligations for tribal
fish and wildlife programs for this Committee. See appendix I for a more
detailed description of how we estimated the impact of a settlement on
Bonneville. We performed our work in September 2003, according to
generally accepted government auditing standards. We provided a a draft
of this statement to Bonneville for comment but did not receive a response
in time to include in this statement.

In summary, we found the following:

•	 A settlement with the Spokane tribe along the lines provided to the
   Colville tribes would likely necessitate a small increase in Bonneville’s
   rates for power. While the rate increase would amount to less than 20
   cents per month per household, it comes at a time when Bonneville’s
   customers have already absorbed rate increases, including those
   announced on October 1, 2003, of over 40 percent and when the region’s
   economy is experiencing difficulties. However, the bulk of Bonneville’s
   obligations in any settlement similar to the Colville settlement will occur
   in the future, when the conditions causing Bonneville’s current financial
   difficulties will probably have abated. Therefore, Bonneville’s current


3
 The legislative settlement proposals introduced in the 106th Congress were S. 1525 and H.R.
2664. In the 107th Congress, the proposals were S. 2567 and H.R. 4859. The proposals
pending in the 108th Congress are S. 1438 and H.R. 1753. Under S. 1438 the settlement costs
would all be paid out of the U.S. Treasury, while under H.R. 1753, the settlement costs would
be split between Bonneville and the Treasury.
4
 U.S. General Accounting Office, Bonneville Power Administration: Long-Term Fiscal
Challenges, GAO-03-918R (Washington, D.C.: July 1, 2003).




Page 2                                    GAO-04-125T Spokane Tribe’s Compensation Claim
                  financial difficulties should not unduly influence current discussions
                  about how to compensate the Spokane tribe.

              •	 A reasonable case can be made to settle the Spokane tribe’s case along
                 the lines of the Colville settlement—a one-time payment from the U.S.
                 Treasury for past lost payments for water power values and annual
                 payments primarily from Bonneville. Bonneville continues to earn
                 revenues from the Spokane Reservation lands used to generate
                 hydropower. However, unlike the Colville tribes, the Spokane tribe does
                 not benefit from these revenues. The Spokane tribe does not benefit
                 because it missed its filing opportunity before the Indian Claims
                 Commission. At that time it was pursuing other avenues to win
                 payments for the value of its land for hydropower. These efforts would
                 ultimately fail. Without congressional action, it seems unlikely that a
                 settlement for the Spokane tribe will occur.



Background	   The Colville and Spokane Indian reservations were established in 1872 and
              1877, respectively, on land that was later included in the state of
              Washington. The Colville Reservation, of approximately 1.4 million acres,
              was created on July 2, 1872, through an executive order issued by President
              Grant. The Spokane Reservation, of approximately 155,000 acres, was
              created by an agreement between agents of the federal government and
              certain Spokane chiefs on August 18, 1877. President Hayes’ executive
              order of January 18, 1881, confirmed the 1877 agreement. In 2001, the
              Colville and Spokane tribes had enrolled populations of 8,842 and 2,305,
              respectively.

              The Indian Claim Commission was created on August 13, 1946, to
              adjudicate Indian claims, including “claims based upon fair and honorable
              dealings that are not recognized by any existing rule of law or equity.”5
              Under section 12 of the act that created the Commission, all claims had to
              be filed within 5 years. Ultimately 370 petitions, which were eventually
              separated into 617 dockets, were filed with the Commission. The great
              majority of the claims were land claims. Settlements awards were paid out
              of the U.S. Treasury.




              5
              Pub. L. No. 79-726, § 2, 60 Stat. 1049, 1050 (1946).




              Page 3                                     GAO-04-125T Spokane Tribe’s Compensation Claim
The Colville tribes filed a number of claims with the Indian Claims
Commission within the 5-year window—on July 31, August 1, and August 8,
1951. Their fisheries claim and water power values claim became part of
Indian Claims Commission Docket No. 181, which was originally filed on
July 31, 1951. The original petition for Docket No. 181 included broad
language seeking damages for unlawful trespass on reservation lands and
for compensation or other benefits from the use of the tribes’ land and
other property. The tribes’ original petition did not specifically mention the
Grand Coulee Dam. In 1956, Docket No. 181 was divided into four separate
claims. The tribes’ fisheries claim became part of Docket No. 181-C. In
November 1976, over 25 years after the original filing of Docket No. 181, the
Indian Claims Commission allowed the Colville tribes to file an amended
petition seeking just and equitable compensation for the water power
values of certain riverbed and upstream lands that had been taken by the
United States as part of the Grand Coulee Dam development. This
amended water power value claim was designated as Docket No. 181-D,
and it was settled in 1994 by Public Law 103-436.

The Spokane tribe filed one claim with the Indian Claims Commission,
Docket No. 331, on August 10, 1951, just days before the August 13, 1951,
deadline. The claim sought additional compensation for land ceded to the
United States by an agreement of March 18, 1887. Furthermore, the
Spokane tribe asserted a general accounting claim. These two claims were
separated into Docket No. 331 for the land claim and Docket No. 331-A for
the accounting claim. Both claims were jointly settled in 1967 for $6.7
million. That is, the Spokane tribe settled all of its claims before the Indian
Claims Commission almost 10 years before the Colville tribes were allowed
to amend their claim to include a water power values claim. In doing so,
the Spokane tribe missed its opportunity to make a legal claim with the
Indian Claims Commission for its water power values as well as its
fisheries. At that time, the Spokane tribe, as well as the Colville tribes,
were pursuing other avenues for compensation of water power values.

The Bonneville Power Administration was formed in 1937 to market
electric power produced by the Bonneville Dam.6 Bonneville’s marketing
responsibilities have expanded since then to include power from 31
federally owned hydroelectric projects, including the Grand Coulee Dam.
Under the Pacific Northwest Electric Power Planning and Conservation
Act of 1980 (Northwest Power Act), Bonneville is responsible for providing


6
Pub. L. No. 75-329, § 2, 50 Stat. 731, 732 (1937).




Page 4                                     GAO-04-125T Spokane Tribe’s Compensation Claim
                         the Pacific Northwest with an adequate, efficient, economical, and reliable
                         power supply.7 Bonneville currently provides about 45 percent of all
                         electric power consumed in Idaho, Montana, Oregon, and Washington and
                         owns about 75 percent of the region’s transmission lines.



Bonneville Would Have    A settlement requiring Bonneville to pay the Spokane tribe would add to its
                         costs of operation, and it therefore would probably pass these costs to
to Recover Settlement    Bonneville’s customers in the form of higher rates for power. Bonneville is
Costs from Ratepayers,   a self-financing agency, which means that it must cover its costs through
                         the revenue generated by selling power and transmission services.
but Magnitude of Rate    Bonneville typically sets its rates for 5-year periods in order to generate
Increase Would Be        enough revenue to cover the costs of operating the federal power system
Small                    and to make its debt payments.

                         Assuming that the settlement with the Spokane tribe is similar in nature to
                         the settlement with the Colville tribe in 1994, the impact on Bonneville’s
                         rates would be small. Under the settlement with the Colville tribe,
                         Bonneville has made annual payments since 1996 that have ranged from
                         about $14 million to $21 million. Currently, Bonneville estimates that it will
                         pay about $17 million per year over the next 5 years.8 In its negotiations
                         with Bonneville, the Spokane tribe has asked for about 40 percent of the
                         Colville tribe’s settlement, which would amount to about $7 million
                         annually from Bonneville. Bonneville uses a rule of thumb to determine
                         rate increases: between $40 million and $50 million in additional annual
                         costs will lead to a rate increase of 1/10th of a cent per kilowatt hour (kWh).
                         Using this rule, we estimate that a settlement with Spokane that is
                         equivalent to 40 percent of the Colville settlement would lead to an
                         increase in rates of less than 20 cents per month per household for a typical
                         household relying solely on power from Bonneville, or a 0.5 percent
                         increase in rates over current levels.9

                         7
                         Pub. L. No. 96-501, § 2, 94 Stat. 2697 (1980).
                         8
                          The payments are to be made in perpetuity, but Bonneville gave us an annual estimate for
                         the next five years that conforms to its 5-year rate case planning horizon. While Bonneville
                         will make these payments to the Colville tribes, it will receive interest credits in the amount
                         of $4.6 million per year from the U.S.Treasury—also in perpetuity—effectively reducing its
                         payments by about 27 percent.
                         9
                          This estimate also assumes that Bonneville pays the entire $7 million per year. If Bonneville
                         receives interest credits from Treasury for part of the amount, the impact would be
                         proportionally smaller.




                         Page 5                                     GAO-04-125T Spokane Tribe’s Compensation Claim
                        Although the magnitude of the rate increase necessary to fund a settlement
                        with the Spokane tribe would be small, it comes at a time when
                        Bonneville’s customers have recently faced large rate increases. From 2000
                        through early 2003, Bonneville experienced a substantial deterioration in
                        its financial condition because of rising costs and lower-than-projected
                        revenues. As a result, Bonneville’s cash reserves of $811 million at the end
                        of fiscal year 2000 had fallen to $188 million by the end of fiscal year 2002.
                        To cope with its financial difficulties, Bonneville raised its power rates for
                        2002 by more than 40 percent over 2001 levels. On October 1, 2003,
                        Bonneville raised its rates a further 2.2 percent. Despite Bonneville’s
                        current financial difficulties, Bonneville predicts the conditions that led to
                        the financial problems—namely, consecutive years of low water
                        conditions, extreme market price volatility, and long-term contracts
                        Bonneville signed to buy power from other suppliers at a high cost, which
                        are due to expire in 2006—will abate. Therefore, because the bulk of
                        Bonneville’s obligations in any settlement similar to the Colville settlement
                        will occur in the future, Bonneville’s current financial difficulties should
                        not unduly influence current discussions about how to compensate the
                        Spokane tribe.



A Reasonable Case Can   A reasonable case can be made for having Bonneville and the U.S. Treasury
                        allocate any costs for the Spokane tribe’s claims along the lines agreed to
Be Made for Adopting    for the Colville tribes. Any settlement would attempt to re-institute a
the Colville Model in   commitment the federal government made to the tribes in the 1930s. Under
                        the Federal Water Power Act of 1920, licenses for the development of
Allocating Any Costs    privately owned hydropower projects should include a “reasonable annual
Associated with a       charge” for the use of Indian lands.10 Originally, the Grand Coulee site was
Settlement for the      licensed, and the Spokane tribe expected to receive annual payments for its
                        lands used for the project. However, the license was cancelled when the
Spokane Tribe           federal government took over the project (federalized the project). Since
                        the federal government is not subject to the Federal Water Power Act, it
                        was not required to make annual payments to the tribes. Nevertheless, the
                        federal government made a commitment in the 1930s to make annual
                        payments to the Colville and Spokane tribes as if the project had remained
                        a nonfederal project. However, the federal government did not follow
                        through on this commitment after the project was completed and started
                        generating revenues from electricity sales in the 1940s. In pursuing this


                        10
                             Pub. L. No. 66-280, §10(e), 41 Stat. 1063, 1069 (1920).




                        Page 6                                        GAO-04-125T Spokane Tribe’s Compensation Claim
matter, the tribes weathered various administrations and changes in the
federal government’s Indian policy. In the 1950s and 1960s, the federal
government actively sought to terminate its relationship with a number of
tribes, including the Spokane tribe.

In the early 1970s, when it became clear that the federal government was
not going to make these payments, the Colville tribes were able to amend
their claim with the Indian Claims Commission to pursue this matter. After
agreeing to the overall legitimacy of the Colville tribes’ claims, the
Congress ultimately approved a settlement that primarily required
Bonneville to provide annual payments for water power values. This
settlement was a compromise to split the costs between Bonneville and the
U.S. Treasury. Bonneville is primarily paying the recurring annual
payments, and the U.S. Treasury’s Judgment Fund provided the one-time
lump sum payment in settlement of the past annual payments—$53
million.11 The Spokane tribe, however, had already settled its claim years
earlier and therefore could not file an amended claim with the commission.
Nevertheless, since Bonneville collects the annual revenues for the
electricity generated by the dam, it could be argued that Bonneville should
make annual payments to the Spokane tribe out of those revenues, as it
does for the Colville tribes; the U.S. Treasury would then pay a lump sum to
settle any claims for past years. The current House settlement proposal,
H.R. 1753, and previous House and Senate settlement proposals introduced
in the 106th and 107th Congresses directed the settlement costs to be split
between Bonneville and the U.S. Treasury.

It could also be argued that the U.S. Treasury should pay the Spokane
tribe’s claim, as it does for most claim settlements against the federal
government. S. 1438 provides for the settlement of the tribe’s claim from
the U.S. Treasury. However, we do not believe a compelling case can be
made to have the nation’s taxpayers fully absorb an additional cost of doing
business associated with Bonneville’s production of power in one region of
the country.


In conclusion, since the Spokane tribe missed its opportunity to file claims
with the Indian Claims Commission for its fisheries and water power
values, it is unlikely that the tribe’s claims and any associated settlement or

11
 The Judgment Fund is a permanent indefinite appropriation available to pay certain
settlements and judgments against the federal government.




Page 7                                  GAO-04-125T Spokane Tribe’s Compensation Claim
                  final resolution will move forward in any meaningful way without some
                  form of congressional intervention. If the Congress is satisfied with the
                  merits of the tribe’s claims, settlement legislation, such as the current
                  House and Senate bills, could be used as a method to resolve the tribe’s
                  claims. A reasonable case can be made for adopting the model established
                  in the Colville settlement to allocate the settlement costs between
                  Bonneville and the U.S. Treasury. Another option would be to enact
                  legislation providing for some form of dispute resolution, such as
                  mediation or binding arbitration. If the Congress has any doubts about the
                  merits of the claim, it could enact legislation to allow the tribe to file its
                  claim in the U.S. Federal Court of Claims.12 The merits of the claims could
                  then be decided in court. Such an action was discussed in 1994 when the
                  Colville settlement was reached.



Contacts and      For further information, please contact Robert A. Robinson on (202) 512-
                  3841. Individuals making key contributions to this testimony included Jill
Acknowledgments   Berman, Brad Dobbins, Samantha Gross, Jason Holliday, Jeffery Malcolm,
                  Frank Rusco, Rebecca Sandulli, and Carol Herrnstadt Shulman.




                  12
                   See, e.g., Pub. L. No. 95-280, § 2, 92 Stat. 244 (1978), Pub. L. No. 96-251, 94 Stat. 372 (1980),
                  Pub .L. No. 96-404, 94 Stat. 1711 (1980), or Pub. L. No. 104-198, 110 Stat. 2418 (1996).




                  Page 8                                      GAO-04-125T Spokane Tribe’s Compensation Claim
Appendix I

Methodology for Estimating the Impact of a
Settlement on the Bonneville Power
Administration
               Because a settlement has not yet been negotiated, we used the terms of the
               Colville settlement to estimate the potential effect of the Spokane
               settlement on electricity rates in the Pacific Northwest. Assumptions used
               in this calculation are designed to provide a conservative (high-end)
               estimate of the impact of the settlement on Bonneville’s rate payers. For
               planning purposes, Bonneville estimates that payments to the Colville
               tribes total $17 million annually.1 The Spokane tribe is requesting as much
               as 40 percent of the Colville settlement, or approximately $7 million
               annually. To estimate the impact of increasing costs on power rates,
               Bonneville uses a rule of thumb that $40 million to $50 million in increased
               costs over a year necessitate a rate increase of approximately $0.001 per
               kilowatt-hour (kWh). Using this rule of thumb, a $7 million per year cost
               increase would raise Bonneville’s wholesale power rates by approximately
               $0.00016 per kWh.

               According to the Oregon Department of Energy, the average household in
               Oregon uses approximately 1,000 kWh of electricity per month. An average
               household in Washington uses 1,170 kWh of electricity per month,
               according to the Washington Utilities and Transportation Commission.
               Using the approximate rate increase calculated above, the electricity bills
               for average households in Oregon and Washington would increase
               approximately 16 cents and 19 cents, respectively. These calculations
               assume that the household receives all its electricity from Bonneville and
               that its retail utility passes through the wholesale rate increase. The impact
               on the region as a whole would be smaller because Bonneville provides
               only about 45 percent of the region’s power. Our calculations also assume
               that Bonneville would not be permitted to deduct any portion of its
               payment to the Spokane tribe from its debt payment to the U.S. Treasury.
               Public Law 103-436 enables Bonneville to deduct a portion of its annual
               payment to the Colville tribes as an interest credit on its Treasury debt
               payments. If a similar provision were included for any payments for the
               Spokane tribe, the impact on ratepayers would be reduced.




               1
                From fiscal year 2000 onward, Bonneville receives a $4.6 million interest credit on its
               Treasury debt payment to offset some of the cost of the Colville settlement. Therefore,
               Bonneville's share of the Colville payments total $12.4 million net of the credit. This
               calculation conservatively assumes that Bonneville will be responsible for the entire
               Spokane payment.




(360410)       Page 9                                    GAO-04-125T Spokane Tribe’s Compensation Claim
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