S5910 CONGRESSIONAL RECORD — SENATE May 1, 1995

By Mr. HATCH:

S. 740. A bill for the relief of Inslaw, Inc.,

and William A. Hamilton and Nancy Burke

Hamilton; to the Committee on the Judiciary.

By Mr. PRESSLER:

S. 741. A bill to require the Army Corps of

Engineers to take such actions as are necessary to obtain and maintain a specified

maximum high water level in Lake Traverse,

South Dakota and Minnesota, and for other

purposes; to the Committee on Environment

and Public Works.

BILLS AND JOINT RESOLUTIONS

STATEMENTS ON INTRODUCED

fBy Mr. THOMAS (for himself, Mr.

MURKOWSKI, Mr. HELMS, Mr.

LAUTENBERG, Mr. GRAMS, and

Mr. CRAIG):

S. 738. A bill to amend the Helium

Act to prohibit the Bureau of Mines

from refining helium and selling refined helium, to dispose of the U.S. helium reserve, and for other purposes; to

the Committee on Energy and Natural

Resources.

HELIUM ACT AMENDMENTS

Mr. THOMAS. Mr. President, I rise

today to offer legislation that would

reform the Federal helium program

and the helium refining and marketing

aspirations of the U.S. Bureau of

Mines.

Mr. President, we are in the process,

I think happily, to be reforming Government, to be changing some of the

things that have gone on for a very

long time, which is a tendency of the

Federal Government. Things that

started for good reason and with meritorious purpose, as time goes by, often

change.

I think everyone admits it becomes

very difficult that despite the changing

conditions, programs seem to continue.

I understand that. They start with a

purpose. Often the remnants of that

purpose at least remains, and of course,

there is always a constituency built

around that activity; in this case, an

economic one. I understand that as

well.

However, the more important thing

is that we do have a chance to change,

indeed, a responsibility to change. If

there is anything, it seems to me, that

this Congress is about, what this election was about in November, it is to

really finally make some of the alterations in Government that need to be

made, try to deal with some of the

things that do not contribute to the

well-being of this country and contribute to the well-being of this Government so that those resources being

used in that manner can be shifted and

changed to something more useful, to

do something that is appropriate for

this Government to be doing.

I think the Federal helium program,

Mr. President, is one of those activities. This helium recovery program

began in 1925. At that time, helium

conservation was deemed to be a matter of national security. At that time,

I think, people saw the future of defense, the future of aviation, as being

lighter-than-air—machinery of that

kind, and there was no private helium

industry that existed.

Today, on the contrary, the private

sector has a thriving helium industry

that produces 90 percent of the world’s

helium demand and supplies it. There

are 11 privately owned plants throughout the country, modern plants, as opposed to the Government plant, which

is some 50 years old.

A private company can deliver helium cheaper, better, and more efficiently than the Federal Government.

Unfortunately, the Federal Government continues to process helium in a

burdensome and outdated fashion. The

program was designed for the 1920’s and

certainly is failing in the 1990’s. Not

only has the program been inefficient,

but it has cost millions of dollars each

year.

Beginning in 1960, the Federal Government contracted with private companies to supply helium to the Bureau

of Mines. To finance these purchases,

the Bureau borrowed $252 million from

the Treasury. Although it was planned

that future sales would cover the costs

of this loan, this has not occurred. The

agency has paid back the loan, and it

continues to accumulate. Today the

Bureau of Mines owes the Treasury

roughly $1.3 billion on the loan.

The legislation that I am introducing, along with several cosponsors, including the chairman of the committee

and the chairman of the subcommittee,

would end the Federal helium program

within 1 year. Then, importantly, it

would phase out the sale of the Federal

crude helium reserve. I think it is very

important that we do phase it out over

a period of time so that this privatesector industry that has developed will

not be demolished by simply dumping

all this surplus supply on the market.

It would end the program and the Federal Government’s direct competition

with the private sector.

The Congressional Budget Office estimates that this bill will save American

taxpayers approximately $7 million annually, between $26 and $36 million

over 5 years. The measure would allow

the Bureau of Mines to contract with

the private sector for services to purchase and distribute crude helium.

There is some requirement in the Government for it. NASA is a customer, as

well as the Department of Energy. It

would be provided by the private sector.

Most importantly, this legislation

phases out the sale of the official helium stockpile over several years and

requires that all of these reserves be

disposed of by the year 2015. This would

allow the helium fields to be probably

close to depleted, the ones that currently are there. It would ensure that

when the stockpile is sold, the return

to the Treasury would be at a level

that makes this a valuable asset. If it

were dumped immediately, it would

not be valuable. The taxpayers would

lose a considerable amount of asset

value.

Mr. President, we are faced, of

course, with some most difficult times

on the budget. We are faced with seeking to balance this budget over 6 or 7

years. I think it is an imperative that

we do that.

We are faced, as well, with programs

that we do want to continue to provide

services. We do want to help people

who are in need. We do want to help

them get back into the workplace. We

do want Medicare to continue to provide those benefits.

Frankly, if we do not do something,

none of those things will happen. it is

not a question of whether we make

some changes; it is a question of what

changes we make and how soon we can

make them.

Somehow, there has been kind of a

presumption developed by our friends

on the other side and by the administration that these programs are simply

designed to take away benefits and

that we should not do that, we ought to

continue doing what we have been

doing.

Let me say that that is not one of the

choices. If we continue to do what we

have been doing with the revenue we

have, by the year 2010 we will be able

to afford only the entitlements and interest on the debt. None of the other

discretionary spending will be able to

be provided.

We have talked about this in the

past, Mr. President. There was considerable discussion last year when I was

in the House Interior Committee. I

think there is general acceptance to

the notion, but we did not get it done.

Now it is time to take action to shut

down the Federal helium program, and

I hope the Senate will take swift action

on this bill so that we can begin to end

this wasteful and inefficient and unnecessary Federal program.

By Mr. HATCH:

S. 740. A bill for the relief of Inslaw,

Inc., and William A. Hamilton and

Nancy Burke Hamilton; to the Committee on the Judiciary.

INSLAW PRIVATE RELIEF ACT

Mr. HATCH. Mr. President, today I

am introducing two pieces of legislation regarding the matter of Inslaw,

Inc.

Inslaw sold the Department of Justice a software program it alleges was

improperly shared with other Federal

agencies. In 1986, Inslaw sued the Department and was awarded a judgment.

An appellate court, however, reversed

the case some years later on technical

grounds. Considerable controversy has

surrounded the merits of Inslaw’s

claim ever since. Referring this matter

to the Court of Claims is thus the best

way to settle this matter once and for

all.

It is to accomplish that referral that

I am introducing these two pieces of

legislation. The first is a bill to provide

the compensation due, if any, to

Inslaw. The second is a resolution, referring the Inslaw matter, including

the bill just described, to the United
May 1, 1995 CONGRESSIONAL RECORD — SENATE S5911

States Court of Federal Claims for a

hearing to determine whether the United States owes the company compensation for providing computer software

and services to the Department of Justice.

The Senate considered this matter

favorably several months ago. On October 6, 1994, we adopted a similar resolution by unanimous consent in the form

of a free-standing amendment to the

Process Patent Protection Act of 1994.

Pursuant to the legislation establishing the Court of Federal Claims, either

House of Congress may refer a matter

to the court. Unfortunately, because

the House of Representatives failed to

take action on the patent bill last October, and the Inslaw amendment was

attached to that piece of legislation,

the status of the amendment was left

in doubt.

As the matter was never properly referred to the court, I believe the best

way to proceed is for the Senate to repeat the action it took in the Inslaw

matter last October.

There is, in closing, a point I believe

that deserves special emphasis. This

legislation simply refers the Inslaw

case to the Court of Claims to hear, determine, and render conclusions that

are sufficient to inform the Congress of

the amount, if any, due to Inslaw for

furnishing its computer services to the

Department of Justice. This legislation

does not obligate Congress to compensate Inslaw. It is deficit neutral, because the final decision to satisfy any

judgment rendered will rest with Congress, not with the Court of Claims.

Congress, and Congress alone, will decide how much to pay, if any, should

the court recommend that compensation is owed. I believe this is the fair

and appropriate thing to do.

By Mr. PRESSLER:

S. 741. A bill to require the Army

Corps of Engineers to take such actions

as are necessary to obtain and maintain a specified maximum high water

level in Lake Traverse, South Dakota

and Minnesota, and for other purposes;

to the Committee on Environment and

Public Works.

LAKE TRAVERSE RELIEF ACT

Mr. PRESSLER. Mr. President,

today I am introducing a bill to correct

a serious problem in South Dakota

that has resulted in severe flooding

along the shores of Lake Traverse.

Lake Traverse is located in the far

northeast corner of South Dakota and

in parts of western Minnesota. In fact,

the boundary line between South Dakota and Minnesota cuts through the

middle of the lake.

There is very interesting history connected with Lake Traverse. Lake Traverse is the beginning of the Red

River—the only major North American

river that flows north. This river eventually enters Hudson Bay and flows

through Wahpeton, Fargo, Grand

Forks, and Winnipeg. Historical

records show this lake was an important avenue in the transportation of

United States grain to destinations as

far away as Belgium.

On Lake Traverse, the U.S. Army

Corps of Engineers maintains and operates White Rock Dam and structures at

interstate bridge. Both these sites are

located east of Rosholt, SD. Operations

to date have been devastating.

Lake Traverse is facing a major disaster due to high water levels. Shorelines have been destroyed. Some small

businesses are facing financial jeopardy. Farmland is being lost. Homes,

cottages, and other structures are

being destroyed. And if that is not

enough, subsequent erosion is wreaking

havoc on the local land. Thousands of

trees are under water and dying.

Something must be done. Taxpayers

should not be required to pay taxes on

land that is under water and useless.

According to the U.S. Army Corps of

Engineers, congressional approval is

needed before the corps can take steps

to correct the high water level and erosion problems. The corps is managing

the lake with arcane rules that are half

a century old. That is unacceptable.

My bill would give the corps the necessary authority to better manage

water release at Lake Traverse and

control erosion.

The answer, in the form of legislation

I am introducing today, is simple: It

would direct the U.S. Army Corps of

Engineers to obtain and maintain a

high water level at Lake Traverse not

to exceed 977 (MSL). In other words,

this legislation would provide the necessary authority for the U.S. Army

Corps of Engineers to solve the problems surrounding Lake Traverse.

There is strong public support for

this action. Just last week, I held a

meeting at the Circle K Resort, which

is located on the South Dakota side of

Lake Traverse. More than 250 people

were in attendance. This turnout clearly indicates that South Dakotans believe something needs to be done. The

bill I am introducing today would

achieve their goal.

Mr. President, I ask unanimous consent that material related to the Lake

Traverse flooding be inserted into the

RECORD.

I urge my colleagues from South Dakota and Minnesota to review this legislation. We must solve this problem. I

urge their support and the support of

the entire Senate.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

[From the Rosholt Review, Apr. 26, 1995]

PRESSLER SEEKING CONGRESSIONAL ACTION ON

TRAVERSE SITUATION

(By Kathleen Cook)

Emotions were almost as hard to control

as rising waters on Lake Traverse at a public

meeting Thursday night.

More than 250 persons crowded into Circle

K Resort to voice concerns about high water,

property damage and shoreline erosion at

the meeting arranged by South Dakota Sen.

Larry Pressler and staff.

Pressler couldn’t attend, but he acted

quickly on his staff’s report of overwhelming

public sentiment.

‘‘According to the U.S. Army Corps of Engineers, they need Congressional approval

before they can take steps to correct the

high water level and erosion problems,’’ he

said Friday.

The Corps is managing the lake with rules

that applied to its condition half a century

ago, and ‘‘that is unacceptable,’’ Pressler

said.

‘‘I am preparing legislation that would

give the Corps the necessary authority to

better manage water release at Lake Traverse and to control erosion,’’ Pressler said.

At Pressler’s invitation, representatives of

the St. Paul District of the U.S. Corps of Engineers attended Thursday’s showdown with

property owners, area farmers and sportsmen, and others who simply have sentimental ties to the lake.

Also present were representatives of South

Dakota Sen. Tom Daschle and Rep. Tim

Johnson and Minnesota Sen. Paul Wellstone.

‘‘Currently, landowners are paying taxes

on land that is under water and not of any

use. Approval of my legislation would change

that. I will work with my colleagues from

South Dakota, Minnesota and North Dakota

to correct this problem quickly,’’ Pressler

said.

Lake Traverse, bisected by the border of

South Dakota and Minnesota, is located at

the headwaters of the Red River, the only

major river that flows north in North America, and eventually drains into the Hudson

Bay.

Less than 100 years ago, Lake Traverse was

a major transportation link for South Dakota agricultural products, Pressler learned

after about 100 persons pressed him earlier

this month to help them address problems.

Cottonwood Point Resort owner Mike

Brody, who led the local effort and who

served as moderator Thursday night,

summed it up. Citing historic, cultural, recreational and economic value of Lake Traverse, he said, ‘‘We would like to see it continue to flourish. We feel the present management of the lake will destroy this treasure.’’

Brody added, ‘‘Tempers are strained, which

is understandable. But we are not here to attack or belittle. We are asking cooperation

of all parties.’’

He presented an aerial video taken around

the lake April 8. Many trees along the shoreline are dying; some of them have been under

water for about three years. Rainbow Island,

normally a peninsula, really is an island

now. Many miles of shoreline are gouged or

washed away with erosion. Silt appears to

flow freely into the lake in some spots.

‘‘When work was completed on these dams

(White Rock and Reservation) years ago,

were they engineered to hold this water

back?’’ Brody asked.

The dams were intended to control ‘‘an

event’’ about every 30 years, according to the

Corps.

Edward Eaton, water control chief for the

St. Paul District of the Corps, said water

level has exceeded elevation 981 feet only

once in 43 years.

Lake Traverse rose to 980.3 feet above sea

level April 1, the third highest level recorded

at the reservoir since it became operational

in 1940. The pool reached 980.75 in 1952 and

980.71 in 1986, according to Corps information.

Todd Johnston of the Lake Traverse Association pointed out that within recent weeks

he believes the water was at least in the 980

range with 40 to 50 mile per hour winds at

times, creating two- to three-feet rolling

waves. ‘‘Was the dam constructed to take

that kind of pounding?’’

The pool was set at 981 to allow for a couple of feet of wave action, Eaton said.
S5912 CONGRESSIONAL RECORD — SENATE May 1, 1995

Eaton then referred to excerpts from a brochure created after a public meeting concerning Traverse flooding in 1986.

At that time, Corps personnel explained in

the Reservation pool, located between

Browns Valley and Reservation Highway, the

government bought permanent flowage

rights for lands lying below elevation 977

mean sea level. Elevation 977 is the summer

conservation pool for the Reservation pool.

The government also acquired the right to

intermittently overflow those lands between

the taking line and the summer conservation

pool to temporarily store flood water. The

flowage easement means Lake Traverse can

permanently flood the surrounding land up

to the taking line at approximately elevation 983.

‘‘Property owners have cabins with flowage

easements. We went through this whole

thing after the flood of 1986. The purpose

isn’t to hold water down but to implement

spring drawdown. We don’t make releases

over winter because of poor quality of water.

We wait as close to spring as possible. This

year a 1.2 foot drawdown would have made

the lake about three-fourths foot higher

than it is now,’’ the Corps spokesman said.

Basically, the St. Paul District representatives relied on answers to questions from the

1986 meeting to deal with problems experienced by property owners in varying degrees

over the past three years—less than a decade—far from a single ‘‘event’’ occurring

every 30 years.

One local resident, John Nelson, wondered

if the government controls the lake in such

a way that Wahpeton-Breckenridge can release sewage.

Until then, the crowd was quiet, but in

their exuberant support of Nelson’s question,

they even interrupted Brody.

Water treatment in cities downstream of

Fargo-Moorhead isn’t directly related to

flood control, Eaton said. ‘‘We don’t make

releases for waste dissolution.’’

Brody then asked the Corps staff to define

intermittent, since it seemed to him government flowage easements for ‘‘intermittent’’

flooding were ‘‘steady’’ instead, at least the

last three years.

At that point, Corps spokesmen repeated

they had the right to flood, acquired through

easements in the early 1940s and on record in

the Roberts County Courthouse.

But several property owners said they purchased lake land with no knowledge of the

easements.

It is the responsibility of the property

buyer to learn what terms, such as ‘‘metes

and bounds,’’ mean, to make sure they have

abstracts examined and updated and to read

their deeds and other real estate papers.

‘‘You’re stuck if you didn’t have your abstract examined,’’ said Roberts County Commissioner Art Johnson.

Brody asked if the Corps would be willing

to work with local agencies to establish retaining pools.

‘‘We don’t believe there is a serious sedimentation problem in the lake,’’ said Eaton.

That remark put local folks over the edge,

drawing loud disagreement.

Moments later, the crowd broke out in applause when Brody said if the Corps isn’t authorized to make changes without Congressional action, then he wanted to pursue Congressional intervention.

He then opened the meeting to comments

from the floor.

‘‘We’ve got to go through all these hoops

for our property. Somebody’s got to be liable

for what I’ve lost, because I’m still paying

taxes on property that is gone, washed

away,’’ said one spectator.

The Corps had made no effort to retain

shoreline, added another property owner.

Back when the Corps’ policies regarding

Lake Traverse were established, ‘‘environment wasn’t so important. Now two islands

are completely gone, trees are gone, the rest

of the islands are completely gone, trees are

gone, the rest of the islands are going . . .’’

said one longtime property owner.

‘‘What’s going to be done?’’ asked another.

Eaton said choices were offered after the

1986 flood: Restore property to its condition

before the high water and accept the risk

that there may be high water again, or floodproof property so that when the lake gets

above 977 elevation, property won’t be damaged as severely.

Roberts County Commissioner LaVonne

Ringsaker wondered it the Corps has money

for dredging. Eaton said no.

Another spectator remarked, ‘‘Water

seems to be held longer these days, and the

soil can’t absorb it after a number of very

wet years.’’

‘‘What’s the magic of 981?’’ asked another.

Gordon Heitzman, a water control specialist with the Corps, answered, ‘‘The bowl is

only so big; it’s for the safety of the dam.’’

Asked for some specific dates regarding establishment of Lake Traverse policy,

Heitzman became flippant—saying he was

still in school back then and wouldn’t know.

He insinuated information sent ahead of the

meeting should have provided answers to

some of the questions being tossed out.

That, and just so much technical jargon,

made Brody lose his composure.

‘‘I’m not a professor, I’m a resort owner!’’

he said, exhibiting a thick catalog of Corps

facts, figures and policies, which he received

when he requested advance information.

‘‘You called Friday (April 14) and asked for

data. You didn’t tell me your problems. I

would like the same courtesy,’’ Heitzman

said. Heitzman later apologized.

[From Watertown Public Opinion, Apr. 11,

1995]

TRAVERSE RESIDENT BLAME CORPS FOR

WATER WOES

(By Wayne Specht)

LAKE TRAVERSE—Rising water along

sprawling Lake Traverse is inundating the

economic and retirement dreams of Mike

Brody and Ron Spencer.

Both men say it’s the fault of the U.S.

Army Corps of Engineers.

Last week, the Corps opened pen gates on

the White Rock Dam at the northern reaches

of Lake Traverse to relieve build-up of water

delivered by Minnesota’s Mustinka River.

That caused waters along Traverse shorelines to rise inundating some farm buildings,

boat houses and vacation cabins built 40

years ago during drier weather cycles than

what have been seen in the last several

years.

Brody bought the 14-acre Cottonwood

Point Resort, three rental cabins and a larger building housing a bar, three years ago.

For a time this week, his property was isolated as Traverse waters covered the only access road to the modest resort. Brody’s parking lot is under several feet of water and he

lost a line of trees he planted recently.

Because his septic tanks have been overtaken by lake waters, his sump pump motors

have burned out, too, and reservations

booked for cabins later this month may have

to be canceled.

‘‘This is the third consecutive year this

has happened, and it’s because of the Corp’s

inept water management practices over the

years,’’ says Brody, who estimates 10 of his

14 acres are now underwater. He had to haul

in fill material to restore the access road so

he could reach his property and says it will

cost him $1,000 to blade his property when

the water recedes.

One mile south of Brodie, Spencer had to

purchase $210 worth of fill material to build

a dike around his home to keep lake waters

outside.

‘‘I live on my military retirement checks

and I won’t be able to meet my bills this

month because I had to buy the fill material.’’

Spencer is not a happy camper either.

As he neared the end of a 24-year Air Force

career, Spencer thought it would be a wonderful idea to purchase the property where,

as a child, he accompanied his parents to

enjoy summertime swimming, fishing and

carefree hours on the same swing that remains on the site today.

‘‘It was my dram come true when I purchased the property last October,’’ Spencer

says. ‘‘But if I had the chance, I would sell

the property tomorrow. I got took.’’

That’s because unlike Brody, who was told

by local residents of Traverse flooding that

threatened lakeshore structures every 10 or

15 years, owners who sold Spencer his nearly

three acres, never let on about seasonal

flooding.

When the water rose, Brody and Spencer

went scurrying for land abstracts where they

learned the Corps of Engineers purchased

land around the perimeter of the lake that

would be covered by water in wet years.

‘‘We also purchased flowage easements

around the lake covering areas that would be

covered by water back in 1942 when the

White Rock Dam and Reservation Dam

across the lake were completed,’’ explained

Corps of Engineers Public Affairs spokesman, Ken Gardner.

Brody says his abstract shows the federal

government obtained easements rights for

977 feet above sea level in 1942.

‘‘Today (Thursday) I found an affidavit on

file in the Roberts County Courthouse from

Col. Joseph Briggs, St. Paul district engineer, dated 1987 placing on public record the

right of the federal government to intermittently raise lake levels to 983 feet. Aren’t

they required to tell landowners?’’

During dry cycles, these figures are of no

concern to lake residents as Corps management of water outflow from the two dams

keeps reservoir levels behind the White Rock

Dam at between 976 and 977 feet.

‘‘However the dams were built for flood

control for the cities of Wahpeton and

Breckenridge which sit on the Boyd de Sioux

River,’’ Gardner said. ‘‘When flood stage

reaches 10 feet in either location, we shut

the dam down tight to zero outflow.’’

That was the case twice during March

when the inflow to Lake Traverse was doubling every 24 hours, Gardner noted, and

some minor flooding struck Wahpeton.

This morning (Thursday) outflow from the

White Rock Dam was 1,100 cubic feet per second, the maximum outflow says Corps resource manager for the Lake Traverse

project Dave Solberg.

Solberg says the outflow has been holding

steady and barring unforeseen heavy rainfall, he says Lake Traverse waters should be

back to normal levels by June 15 given good

evaporation conditions.

Gardner and Solberg both say the problem

for residents like Spencer and Brody is properties they bought were built during the

1950s within the federal easements and are

subject to periodic flooding, especially during the past three very wet years.

‘‘I wasn’t asking the Corps to bend over for

me,’’ Brody says, ‘‘but Solberg told me I

shouldn’t have purchased my property. What

kind of compassion is that?’’

Brody and Spencer says the larger problem

is federal government enticements to farmers for the last 60 years that rewarded them

for draining sloughs thus eliminating natural drainage areas.