Statements on Introduced Bills and Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - February 08, 2007)

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Ms. MURKOWSKI. Mr. President, I am pleased to be joined by my colleagues, Senators ENSIGN, STEVENS, KYL, CRAIG, CRAPO, and INHOFE, in introducing the Circuit Court of Appeals Restructuring and Modernization Act of 2007.

Our legislation will create a new Twelfth Circuit comprised of Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona and will go far in improving the efficiency and effectiveness of the current Ninth Circuit U.S. Court of Appeals.

One need only look at the sheer geographic size of the Ninth Circuit to find reasons for reorganization. The Ninth Circuit extends from the Arctic Circle to the Mexican border, spans the tropics of Hawaii and crosses the International Dateline to Guam and the Northern Mariana Islands. Encompassing nine States and some 1.4 million square miles, the Ninth Circuit, by any means of measure, is the largest of all U.S. circuit courts of appeal. In fact, it is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined.

The Ninth Circuit serves a population of nearly 60 million, almost twice as many as the next largest Circuit. It contains the States that experience the fastest growth rate in the Nation. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million--an increase which will inevitably create an even more daunting caseload.

The only factor more disturbing than the geographic magnitude of the circuit is the magnitude of its ever-expanding docket. The Ninth Circuit has more cases than any other circuit. Based on figures from March, 2006, the Ninth Circuit had 71 percent more cases than the next largest circuit--that is equivalent to the caseload of the Third, Seventh, Eighth and Tenth Circuits combined.

Moreover, because of the sheer magnitude of cases brought before the courts, citizens within the court's jurisdiction face intolerable delays in getting their cases heard. The median time to get a final disposition of an appellate case in the Ninth Circuit takes nearly 4 months longer than the national average. Former Chief Justice Warren E. Burger called the Ninth Circuit's docket an ``unmanageable administrative monstrosity.'

The massive size and daunting caseload of the Ninth Circuit result in a decrease in the ability of judges to keep abreast of legal developments within the circuit. The large number of judges scattered over the 1.4 million square miles of the circuit inevitably results in difficulty in reaching consistent circuit decisions. This lack of judicial consistency discourages settlements and leads to unnecessary litigation. Reversal rates by the Supreme Court remain astonishingly high. In 2005, 87.5 percent of the Ninth Circuit cases brought before the Supreme Court were reversed or vacated. In 2006, 96 percent were reversed or vacated.

Another problem with the Ninth Circuit is that it is never able to speak with one voice. Because of its size, the Ninth Circuit is the only circuit where all judges do not sit in en banc, or full court, review of panel decisions. Rather than splitting the Ninth Circuit at the time the Fifth Circuit was split, Congress decided to permit the Ninth Circuit to test a ``limited' en banc procedure. The limited en banc allows a full court to be comprised of 11 members, rather than 28. Therefore, 6 members of the 28 are all that is necessary for a majority opinion.

Former Chief Justice Burger strongly opposed the limited en banc procedure:

Six judges can now bind more than 100 Article III and Article I judges, and this is simply contrary to how a court should function I strongly believe the Ninth Circuit should be divided.

The legislation that I and my colleagues introduce today is the sensible reorganization of the Ninth Circuit. No one court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. Our legislation creates a circuit which is more geographically manageable, thereby significantly reducing wasted time and money spent on judicial travel.

Additionally, caseloads will be much more manageable. Whatever circuit that contains California will always be the giant of the circuits, but as you can see from this chart, caseloads before the new Ninth Circuit and the new Twelfth Circuit are much more in line with other circuits. Such reductions in caseload will clearly improve uniformity, consistency and dependency in legal decisions.

Additionally, this legislation is not novel. Since the day the circuit was established, over a century ago, there have been discussions to divide it. Over the last several decades, Congress has held hearings and debated a split and even mandated two congressional commissions to study the issue each of which recommended dividing the circuit. In fact, the scholarly White Commission, which reported to Congress in 1998, concluded that restructuring the Ninth Circuit would ``increase the consistency and coherence of the law, maximize the likelihood of genuine collegiality, establish an effective procedure for maintaining uniform decisional law within the circuit, and relate the appellate forum more closely to the region it serves.'

Furthermore, splitting a circuit to respond to caseload and population growth is by no means unprecedented. Congress divided the original Eighth Circuit to create the Tenth Circuit in 1929 and divided the former Fifth Circuit to create the Eleventh Circuit in 1980.

We have waited long enough. The 60 million residents of the Ninth Circuit are the persons who suffer. Many wait years before cases are heard and decided, prompting many to forego the entire appellate process. In brief, the Ninth Circuit has become a circuit where justice is not swift and not always served.

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By Ms. MURKOWSKI:

S. 533. A bill to amend the National Aquaculture Act of 1980 to prohibit the issuance of permits for marine aquaculture facilities until requirements for the permits are enacted into law; to the Committee on Agriculture, Nutrition, and Forestry.

Ms. MURKOWSKI. Mr. President, today I am reintroducing an important bill on a subject that was not resolved last year, and which continues to be an outstanding issue for those of us who are dependent on healthy and productive natural populations of ocean fish and shellfish.

Simply put, this bill prohibits further movement toward the development of aquaculture facilities in Federal waters until Congress has had an opportunity to review all of the serious implications, and make decisions on how such development should proceed.

For years, some members of the Federal bureaucracy have advocated going forward with offshore aquaculture development without that debate. While the administration has entertained some level of public input, the role of Congress must not be undermined. Doing so, would be an extraordinarily bad idea.

The Administration is in the final stages of preparing a bill to allow offshore aquaculture development to occur, and it plans to send the bill to Congress in the very near future. In the last Congress, the Administration proposed legislation to provide a regulatory framework for the development of off-shore aquaculture. While their draft bill is an improvement, it still does not establish clear mandatory environmental standards for the aquaculture industry.

I remain steadfast that any proposal should meet the standards of the National Environmental Policy Act, the Magnuson-Stevens Fishery Conservation and Management Act and the Jones Act. Why should this industry be exempt from the same laws that our commercial fisheries are subject to? Why should this industry not go through the same rigorous environmental review as any other activity that will have impacts on the environment?

Scientists, the media and the public are awakening to the serious disadvantages of fish raised in fish farming operations compared to naturally healthy wild fish species such as Alaska salmon, halibut, sablefish, crab and many other species.

It has become common to see news reports that cite not only the general health advantages of eating fish at least once or twice a week, but the specific advantages of fish such as wild salmon, which contains essential Omega-3 fatty acids that may help reduce the risk of heart disease and possibly have similar beneficial effects on other diseases.

Educated and watchful consumers have also seen recent stories citing research that not only demonstrates that farmed salmon fed vegetable-based food does not have the same beneficial impact on cardio-vascular health, but also that the demand for other fish that we use as feed in those fish farms may lead to the decimation of those stocks. Yet the Administration's bill does not address feed in a meaningful way.

Those same alert consumers may also have seen stories indicating that fish farms may create serious pollution problems from the concentration of fish feces and uneaten food, that fish farms may harbor diseases that can be transmitted to previously healthy wild fish stocks, and that fish farming has had a devastating effect on communities that depend on traditional fisheries.

It is by no means certain that all those problems would be duplicated if we begin to develop fish farms that are farther offshore, but neither is there any evidence that they would not be ..... I certainly don't believe it is prudent to extend the site permits to 20 years, as in the draft bill, given all of the questions and uncertainties of the environmental risks.

Not only do the proponents want to encourage such development, they also want to change the way decisions are made so that all the authority rests in the hands of just one Federal agency. I believe that would be a serious mistake. There are simply too many factors that should be evaluated--from hydraulic engineering, to environmental impacts, transportation and shipping issues, fish biology, management of disease, to the nutritional character of farmed fish, and so on--for any existing agency.

We cannot afford a rush to judgment on this issue--it is far too dangerous if we make a mistake. In my view, such a serious matter deserves the same level of scrutiny by Congress as the recommendations of the U.S. Commission on Ocean Policy for other sweeping changes in ocean governance.

The ``Natural Stock Conservation Act' I am introducing today lays down a marker for where the debate on offshore aquaculture needs to go. It would prohibit the development of new offshore aquaculture operations until Congress has acted to ensure that every Federal agency involved does the necessary analyses in areas such as disease control, engineering, pollution prevention, biological and genetic impacts, economic and social effects, and other critical issues, none of which are specifically required under existing law.

I strongly urge my colleagues to understand that this is not a parochial issue, but a very real threat to the literal viability of natural fish and shellfish stocks, as well as the economic viability of many coastal communities. We must retain the oversight necessary to ensure that if we move forward on the development of off-shore aquaculture.

I sincerely hope that Congress will give this issue the attention it deserves. We all want to make sure we enjoy abundant supplies of healthy foods in the future, but not if it means unnecessary and avoidable damage to wild species, to the environment generally, and to the economies of America's coastal fishing communities.

I ask unanimous consent that the text of my bill be printed in the RECORD.

There being no objection, the text of the bill was ordered to be printed in the Record, as follows:

S. 533

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