United States Court of Appeals
For the First Circuit
No. 02-1899
ATLANTIC FISH SPOTTERS ASSOCIATION, ET AL.,
Plaintiffs, Appellants,
v.
DONALD L. EVANS, AS HE IS SECRETARY OF COMMERCE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Charles Tiefer, with whom David E. Frulla, Andrew D. Herman,
Brand & Frulla, PC, H. Reed Witherby, and Smith & Duggan, LLP were
on brief, for appellants.
Anton P. Giedt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Caroline Park,
Office of General Counsel, NOAA/NMFS, were on brief, for appellee
Evans.
Jay S. Johnson, with whom Ball Janik, LLP was on brief, for
appellees General Category Tuna Association et al.
February 25, 2003
SELYA, Circuit Judge. This appeal requires us to
determine whether Congress intended to use an annual appropriations
bill as a vehicle for enacting permanent law to abolish the use of
"spotter planes" by tuna fishermen. The district court held that
it did and entered judgment accordingly. Atl. Fish Spotters Ass'n
v. Evans, 206 F. Supp. 2d 81 (D. Mass. 2002). Because the
pertinent statutory language does not express Congress's intent to
enact permanent law with sufficient clarity to overcome the
presumption that a provision in an appropriations bill applies only
to the fiscal year for which it is enacted, we reverse.
I. BACKGROUND
Inasmuch as the material facts are not in dispute, we
present here only those details that are necessary to frame the
issue on appeal. We refer persons who desire the full flavor of
the litigation's factual and procedural history to the district
court's thorough opinion. See id. at 84-86 & n.2.
We start our sketch by acknowledging that the love of
money is the root of the parties' shared interest in how to harvest
Atlantic bluefin tuna. A single bluefin can sell for more than
$50,000. Those who oppose the use of airborne spotters contend
that their deployment gives unfair advantage, and, moreover,
shortens the bluefin season because boats using this technique
quickly exhaust the allowed harvest.
-2-
Against this backdrop, we identify the protagonists.
Plaintiff-appellant Atlantic Fish Spotters Association (AFSA) is a
trade association. Its membership is comprised of pilots who are
capable of locating schools of fish from the air and guiding
fishermen toward them. The pilots offer their services to surface
vessel fishermen, many of whom consider this methodology highly
efficient. The individual plaintiffs-appellants, Jonathan E.
Mayhew, Robert H. Sampson, William C. Chaprales, and Ralph E.
Pratt, earn their livelihoods either as spotter pilots or as
fishermen who wish to use spotter services in endeavoring to catch
bluefin tuna. Defendant-appellee Donald L. Evans is the incumbent
Secretary of Commerce (the Secretary). He is responsible for
administering programs that fall under the aegis of the United
States Department of Commerce. The National Oceanic and
Atmospheric Administration (NOAA) is an agency within the
Department of Commerce, and the National Marine Fisheries Service
(NMFS) is a part of the NOAA. The other appellees, who intervened
as defendants below, are the General Category Tuna Association and
the Northshore Community Tuna Association (the Intervenors). These
groups represent the interests of those who employ traditional
methods of fishing for bluefin tuna, unassisted by airborne
spotters.
The centerpiece of this litigation is a federal
permitting scheme, within the purview of the Department of
-3-
Commerce, applicable to the harvesting of bluefin tuna. See
Atlantic Tunas Convention Act, 16 U.S.C. §§ 971-971k (2000);
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
§§ 1801-1883 (2000). According to the Secretary, the law in force
from and after the 2001 fishing season required the NMFS to issue
most bluefin permits1 with the condition "that the fishing
activities . . . will not involve the use of an aircraft in any
manner." The Secretary traces this ban to a rider attached to an
appropriations bill for fiscal year (FY) 2001. Because the
Secretary reads the rider as creating permanent law that leaves him
no discretion, he has issued permits for both the 2001 and 2002
fishing seasons with the disputed condition attached and intends to
follow this praxis for the 2003 season.
On June 7, 2001, the AFSA filed a complaint in the United
States District Court for the District of Massachusetts seeking,
inter alia, declaratory and injunctive relief limiting the permit
condition to the 2001 fishing season.2 The AFSA argued that the
appropriations rider only prohibited the use of spotter aircraft in
1
We say "most" because the NMFS divides permits into three
categories. The General Category covers a broad variety of fishing
methods; the Harpoon Category covers the use of harpoons; and the
Dredge Category covers the use of large nets. Only permits in the
first two categories are at issue here.
2
The complaint also charged the Secretary with violating both
the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, and
the Regulatory Flexibility Act, id. §§ 601-612. Those claims are
not at issue in this appeal.
-4-
catching bluefin tuna through FY 2001, and that without additional
authorization from Congress, the ban was not enforceable after the
end of that fiscal year (September 30, 2001).3
After the Intervenors had entered the fray, the parties
filed cross-motions for summary judgment. The district court
applied common canons of construction to the statutory language and
granted summary judgment in favor of the defendants. Atl. Fish,
206 F. Supp. 2d at 95. This timely appeal followed.
II. ANALYSIS
Summary judgment is appropriate only if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When
the parties cross-move for summary judgment, the district court
must resolve all genuine factual disputes in favor of the party
opposing each such motion and draw all reasonable inferences
derived from the facts in that party's favor. New Engl. Reg'l
Council of Carpenters v. Kinton, 284 F.3d 9, 19 (1st Cir. 2002).
We afford de novo review to orders granting summary judgment,
3
Prior to FY 2001, the Secretary attempted to impose a similar
condition by regulation. Atl. Fish Spotters Ass'n v. Daley, 8 F.
Supp. 2d 113, 115-16 (D. Mass. 1998). The AFSA successfully
challenged the Secretary's authority to do so. Id. at 116-18.
Thus, the Secretary cannot lawfully impose the disputed condition
absent a statute empowering him to do so.
-5-
applying essentially the same decisional framework. Id. Such non-
deferential review is particularly appropriate in cases, such as
this one, that hinge on matters of statutory interpretation.
Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir. 2002).
The question before us concerns the proper interpretation
of a rider attached to an appropriations bill. The key provision
reads:
None of the funds provided in this or any
previous Act, or hereinafter made available to
the Department of Commerce shall be available
to issue or renew, for any fishing vessel, any
general or harpoon category fishing permit for
Atlantic bluefin tuna that would allow the
vessel —
(1) to use an aircraft to locate, or otherwise
assist in fishing for, catching, or
possessing, Atlantic bluefin tuna; or
(2) to fish for, catch, or possess[] Atlantic
bluefin tuna located by the use of an
aircraft.
Act of Dec. 21, 2000, Pub. L. No. 106-553, app. B § 634, 2000
U.S.C.C.A.N. (114 Stat.) 2762, 2762A-114 (Section 634). The
district court held that the language of Section 634 created
permanent law. Atl. Fish, 206 F. Supp. 2d at 92. We test this
construct.
Statutory interpretation begins — and sometimes ends —
with the relevant statutory text. Plumley, 303 F.3d at 369. When
the words of a statute neither create ambiguity nor lead to an
entirely unreasonable interpretation, an inquiring court need not
-6-
consult other aids to statutory construction. United States v.
Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). In
discerning Congress's intent from the statute itself, we attribute
to words that are not specially defined in the text their ordinary
usage, albeit with the commonsense understanding that meaning can
only be ascribed to language when it is taken in context. Riva v.
Commonwealth of Mass., 61 F.3d 1003, 1007 (1st Cir. 1995).
This interpretive modality is particularly apt when the
meaning of an annual appropriations bill hangs in the balance. A
provision in an annual appropriations bill presumptively applies
only during the fiscal year to which the bill pertains. The
presumption may be rebutted, however, if the appropriations bill
"expressly provides that it is available after the fiscal year
covered by the law in which it appears." 31 U.S.C. § 1301(c)(2)
(2000).
These principles are deeply rooted in our jurisprudence.
Their origins can be traced to the opinion in Minis v. United
States, 40 U.S. 423 (1841), in which the Supreme Court wrote that
"[i]t would be . . . unusual, to find engrafted upon . . .
temporary appropriations, any provision . . . to have . . .
permanent application to all future appropriations. Nor ought such
an intention on the part of the legislature to be presumed." Id.
at 445. In the more than 160 years since Minis was decided, the
Court has reiterated, time and time again, that appropriations
-7-
bills have no more effect on existing law than that which is
manifest in the language of any particular provision. See, e.g.,
United States v. Will, 449 U.S. 200, 222 (1980); TVA v. Hill, 437
U.S. 153, 190 (1978). The Court has made equally clear that if an
appropriations bill changes existing law, any such change applies
only to the fiscal year for which the bill was passed unless
Congress clearly expresses a contrary intent. See United States v.
Vulte, 233 U.S. 509, 514-15 (1914); United States v. Langston, 118
U.S. 389, 394 (1886). Notwithstanding the growing complexity of
the appropriations process, see 1 United States General Accounting
Office, Principles of Federal Appropriations Law 1-8 to 1-11 (2d
ed. 1991) (GAO Principles), available at www.gao.gov, the courts of
appeals have continued to abide by these precepts. E.g., Auburn
Hous. Auth. v. Martinez, 277 F.3d 138, 146 (2d Cir. 2002); Bldg. &
Constr. Trades Dep't, AFL-CIO v. Martin, 961 F.2d 269, 273-74 (D.C.
Cir. 1992). The rule, then, is that Congress may create permanent,
substantive law through an appropriations bill only if it is clear
about its intentions. Put another way, Congress cannot rebut the
presumption against permanence by sounding an uncertain trumpet.
In the final analysis, the question of permanence vel non
depends on Congress's intent as expressed in the particular
appropriations bill. See Will, 449 U.S. at 222; see also Martinez,
277 F.3d at 149-50 (explaining that courts are obliged "to remain
faithful to Congress's words expressed in the whole statutory
-8-
scheme"). Thus, the presumption against permanence in
appropriation bills can be overcome if Congress clearly expresses
its intention to create permanent law or if the nature of the
provision would make any other interpretation unreasonable. See
Minis, 40 U.S. at 445; see also 62 Comp. Gen. 54, 56 (1982), 1982
WL 26705, at *2; GAO Principles at 2-31 to 2-32.
Although this sets the bar quite high, statutory language
that affirmatively defies temporal limitation nonetheless can
overcome the presumption. See Martin, 961 F.2d at 274; Cella v.
United States, 208 F.2d 783, 790 (7th Cir. 1953); see also GAO
Principles at 2-29. Thus, Congress can imbue an appropriations
provision with permanence by using "words of futurity." United
States v. Int'l Bus. Mach. Corp., 892 F.2d 1006, 1009 (Fed. Cir.
1989). We caution, however, that even the presence of such words
will not establish permanence if that construction would render
other statutory language meaningless or lead to an absurd result.
See Martinez, 277 F.3d at 146 (refusing to read permanence into a
provision containing the word "hereafter" when doing so would
impliedly repeal another provision in the same bill).
Measured by this yardstick, the appropriations bill upon
which the Secretary relies fails to evince a congressional intent
to make permanent Section 634's ban on the use of spotter aircraft.
For one thing, the text of Section 634 contains no words of
futurity (and, thus, the language is impuissant to overcome the
-9-
presumption against permanence). See Minis, 40 U.S. at 445; Int'l
Bus. Mach., 892 F.2d at 1009. For another thing, the nature of
Section 634 is not so foreign to the surrounding appropriations as
to make it unreasonable to interpret its text as creating temporary
law. See Minis, 40 U.S. at 445; 62 Comp. Gen. at 56-57, 1982 WL
26705, at *3; GAO Principles at 2-31 to 2-32.
Nor do we consider it unreasonable for Congress to enact
such a ban for one year only. The record lays out the competing
public policy interests that the ban affects. The choice to
balance such interests by temporizing — putting a ban in place for
one year and requiring it to be reenacted the following year to
remain in effect — is a valid exercise of legislative prerogative.
Politics is, after all, the art of compromise.
In an effort to blunt the force of this reasoning, the
appellees urge that the word "hereinafter" in Section 634 should be
interpreted as a synonym for the word "hereafter" and thus regarded
as a word of futurity. To justify this linguistic leap, they note
the familiar canon that a statute should be interpreted so as to
give meaning to every word and phrase. See Lopez-Soto v. Hawayek,
175 F.3d 170, 173 (1st Cir. 1999); United States v. Ven-Fuel, Inc.,
758 F.2d 741, 751-52 (1st Cir. 1985). Building on this foundation,
they assert that the phrase "this or any previous Act," contained
in the rider, refers to the entire appropriations bill and all
previously enacted legislation. Thus, interpreting "hereinafter"
-10-
according to its common meaning — "in the following part of this
writing or document," Webster's Third New Int'l Dict. 1059 (1993)
— would render the reference to "this . . . Act" superfluous. For
"this or any previous Act" to make sense, the appellees say,
Congress must have meant "hereinafter" to mean "hereafter," thereby
signifying all subsequent legislation. In their view, this
converts "hereinafter" into a word of futurity (and, thus, makes
Section 634 permanent law).
We are unwilling to take such liberties with the King's
English. Canons of construction are valuable interpretive tools,
but they cannot be applied woodenly. Context is important — and
the fact that the language in question appears in an appropriations
bill is highly significant. That fact requires us to adhere to the
accepted meanings of the words Congress chose when doing so does
not lead to an implausible result. See Minis, 40 U.S. at 445;
Martinez, 277 F.3d at 149-50; see also 31 U.S.C. § 1301(c)(2).
Congress selected the word "hereinafter," and that word, in its
universally accepted meaning, refers to that which follows in the
same writing. The appellees have been unable to cite any
respectable authority for the proposition that "hereinafter" and
"hereafter" can be used synonymously. Under such circumstances, we
must eliminate all reasonable interpretations of the language that
Congress chose before dropping out an inconvenient syllable and
twisting a word into an unfamiliar shape.
-11-
It is certainly plausible (and, thus, conclusive for our
purposes) that Congress intended the phrase "[n]one of the funds
provided in this or any previous Act, or hereinafter made available
to the Department of Commerce" as nothing more than a particularly
emphatic way of stating the stock phrase "this or any other act,"
which appears regularly in appropriations bills. See GAO
Principles at 2-30. "The words . . . 'this or any other act' are
not words of futurity. They merely refer to any other
appropriation act for the same fiscal year." Id. We think it not
unlikely that Congress used the belt-and-suspenders version of this
trite phrase for its broad spatial effect rather than to breach
temporal barriers. Since the rudimentary phrase fails to overcome
the presumption against permanence in appropriations bills,
Martinez, 277 F.3d at 146 n.2, the rephrasing of it, with only
inconsequential variations, should not be deemed to establish
permanence.
Moreover, interpreting Section 634 as limited to FY 2001
does not render any of the language superfluous, redundant, or
without meaning. As the lower court recognized, Atl. Fish, 206 F.
Supp. 2d at 90 & n.5, the phrase "this or any previous Act"
unquestionably prohibited the use of monies appropriated either
under Pub. L. No. 106-553 or before its enactment for licensing
fishing operations that use spotter aircraft. But Congress
customarily enacts a number of appropriations bills each year. See
-12-
GAO Principles at 1-15. Pub. L. No. 106-553 was but one of the
multitude. It did not encompass all appropriations for FY 2001.
It is, therefore, entirely possible that Congress followed "this or
any previous Act" with "or hereinafter made available to the
Department of Commerce" to ensure that the ban applied to any
appropriations bills subsequently enacted for FY 2001, no matter
the sequence in which Congress ultimately might pass the bills.
The reasonableness of this precaution hardly can be
doubted. The appropriations cycle is notoriously unpredictable.
Cf. Harold P. Coxson, Federal Construction Spending for FY2000:
The Making of Law and Sausage, Construction Lawyer, Jan. 2000, at
45 (positing that Chancellor Bismarck's famous comparison of making
laws to making sausage "is at no time more apt than during the
appropriations process"). And the sockdolager is that Congress in
fact made FY 2001 funds available to the Department of Commerce in
an appropriations bill that was passed subsequent to Pub. L. No.
106-553. See Act of Dec. 21, 2000, Pub. L. No. 106-554, app. D §§
207, 209, 2000 U.S.C.C.A.N. (114 Stat.) 2763, 2763A-176 to 179
(providing monies for FY 2001, in addition to those appropriated in
Pub. L. 106-553, to fund NOAA operations, research, and
facilities). Regardless of whether other legal impediments might
have prevented these later funds from being used to authorize
bluefin fishing with the aid of airborne spotters, Section 634's
precautionary language guaranteed that any attempt to do so would
-13-
be futile. Seen in this light, the word "hereinafter," interpreted
in its usual and customary sense, is neither meaningless nor
redundant as used in Section 634.
The appellees next embrace the district court's principal
rationale: that a conclusion of permanence is warranted by
comparing Section 634 with Section 204.4 The district court
reasoned that these two sections are peas in a pod — they contain
identical "scope" language — and that Section 204 must create
permanent law because it would be absurd to assume that Congress
intended to extend the protections of Section 204 for only one
year. Atl. Fish, 206 F. Supp. 2d at 91-92. Building on this
foundation, the court concluded that since the two sections were
enacted in the same appropriations bill, Section 634's identical
"scope" language also must create permanent law. Id.
This analysis might have some persuasive force if we
looked only within the four corners of Pub. L. No. 106-553. The
Supreme Court has indicated, however, that, in the course of
4
Section 204 reads in pertinent part:
None of the funds provided in this or any
previous Act, or hereinafter made available to
the Department of Commerce, shall be available
to reimburse the Unemployment Trust Fund or
any other fund or account of the Treasury to
pay for any expenses . . . for services
performed by [temporary Census workers].
Act of Dec. 21, 2000, Pub. L. No. 106-553, app. B § 204, 2000
U.S.C.C.A.N. (114 Stat.) 2762, 2762A-78 (emphasis supplied).
-14-
interpreting appropriations bills, courts may compare enactments in
one year to corresponding enactments in other years in order to
discern congressional intent. See, e.g., United States v.
Mitchell, 109 U.S. 146, 148 (1883). The point of this comparison
is to determine whether Congress believed it necessary to reenact
the same provision from year to year. See, e.g., United States v.
Dickerson, 310 U.S. 554, 556-57, 561 (1940). After all, if
Congress annually reenacts a provision, common sense suggests — and
courts are free to presume — that Congress did not consider the
language as creating permanent law. See Vulte, 233 U.S. at 514.
An examination of appropriations prior to FY 2001 reveals
that Congress regularly enacted the substance of Section 204, using
the very same "scope" language, for eleven consecutive years.5
This constant repetition convinces us of two things. First,
5
See Act of Nov. 29, 1999, Pub. L. 106-113, app. A § 204, 1999
U.S.C.C.A.N. (113 Stat.) 1501, 1501A-31; Act of Oct. 21, 1998, Pub.
L. 105-277, Div. A, § 101(b) [Title II, § 204], 1998 U.S.C.C.A.N.
(112 Stat.) 2681, 2681-86; Act of Nov. 26, 1997, Pub. L. 105-119,
Title II, § 204, 1997 U.S.C.C.A.N. (111 Stat.) 2440, 2479; Act of
Sept. 30, 1996, Pub. L. 104-208, Div. A, Title I, § 101(a) [Title
II, § 204], 1996 U.S.C.C.A.N. (110 Stat.) 3009, 3009-39; Act of
Apr. 26, 1996, Pub. L. 104-134, Title I, § 101(a) [Title II, §
204], 1996 U.S.C.C.A.N. (110 Stat.) 1321, 1321-30 (renumbered Title
I Pub. L. 104-140, § 1(a), May 2, 1996, id. at 1327); Act of Aug.
26, 1994, Pub. L. 103-317, Title II, § 204, 1994 U.S.C.C.A.N. (108
Stat.) 1724, 1749; Act of Oct. 27, 1993, Pub. L. 103-121, Title II,
§ 204, 1993 U.S.C.C.A.N. (107 Stat.) 1153, 1177; Act of Oct. 6,
1992, Pub. L. 102-395, Title II, § 204, 1992 U.S.C.C.A.N. (106
Stat.) 1828, 1855; Act of Oct. 28, 1991, Pub. L. 102-140, Title II,
§ 204, 1991 U.S.C.C.A.N. (105 Stat.) 782, 806; Act of Nov. 5, 1990,
Pub. L. 101-515, Title I, § 104, 1990 U.S.C.C.A.N. (104 Stat.)
2101, 2108.
-15-
Congress plainly intended Section 204 as temporary, not permanent,6
law. "[R]epeated inclusion of a provision in annual appropriation
acts indicates that it is not considered or intended by Congress to
be permanent." GAO Principles at 2-30 to 2-31. Second, the
comparison between Section 204 and Section 634 undermines, rather
than supports, the appellees' position: it would be
counterintuitive to assume that Congress borrowed language that
historically created temporary law from one provision of an
appropriations bill with the intent that the borrowed language,
when used elsewhere, would establish permanent law.
The appellees make one last effort to persuade us. They
note that some other provisions in Pub. L. No. 106-553 use language
that flatly limits their application to FY 2001. See, e.g.,
Section 203, 2000 U.S.C.C.A.N. at 2762A-78 (stipulating that
"[n]one of the funds made available by this Act" can be used beyond
FY 2001); Section 616, id. at 2762A-106 (similar). Invoking the
tenet that Congress should be deemed to act intentionally when it
6
The court below found it significant that Section 204
referred to "decennial censuses." Atl. Fish, 206 F. Supp. 2d at
91. Because this reference is in the plural, the court inferred,
it must create permanent law. Id. at 91-92. We do not think that
this word choice can bear the weight of the court's conclusion.
The change actually occurred in FY 2000 rather than FY 2001. See
1999 U.S.C.C.A.N. at 1501A-31. Prior to FY 2000, Section 204
mentioned only the 1990 census. See, e.g., 1998 U.S.C.C.A.N. at
2681-86. The most that can be made of the naked change from the
singular to the plural is that the language refers to both past and
current censuses. This is made evident by the fact that the plural
usage was repeated in FY 2001. See 2000 U.S.C.C.A.N. at 2762A-78.
-16-
includes particular language in one section of a statute but omits
it in another section of the same statute, see Duncan v. Walker,
533 U.S. 167, 173 (2001), the appellees argue that Congress
indicated its intent to make Section 634 permanent law by omitting
any such categorical directive. We are not persuaded.
Although the canon of construction described by the
Duncan Court is "generally presumed," id., that canon cannot be
applied indiscriminately. Here, unlike in Duncan, a separate
statute, 31 U.S.C. § 1301, instructs us on how to interpret
appropriations bills, and that statute, backed by over a century
and a half of uniform judicial precedent, commands us to indulge
the very specific presumption that provisions in an appropriations
bill are to be considered temporary unless Congress expressly
states a contrary intent.
Even more compellingly, a proviso in the same
appropriations bill states unequivocally that "[n]o part of any
appropriation contained in this Act shall remain available for
obligation beyond the current fiscal year unless expressly so
provided herein." Pub. L. No. 106-553, app. B § 602 (Section 602),
2000 U.S.C.C.A.N. at 2762A-103. This proviso not only reinforces
the historic presumption against permanence but also demonstrates
that Congress, in this instance, chose to travel that path. The
language of Section 602 makes manifest that Congress endorsed the
setting of the sun on each and every provision in the FY 2001
-17-
appropriations bill — including Section 634 — at the end of that
fiscal year absent an express direction to the contrary. The text
of Section 634 contains no words of futurity adequate to overcome
the mandate of Section 602.
These facts add up to an easily predictable result: for
purposes of statutory construction, a general judicial presumption
necessarily must yield to a specific, clearly articulated statutory
directive. Cf. Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384-85 (1992) (invoking the principle that, in statutory
construction, "the specific governs the general" to resolve a
conflict between two statutes).7
The Intervenors make two additional arguments. First,
they maintain that "the repetition of a provision in the following
year's appropriation act [should] be viewed simply as an 'excess of
caution.'" GAO Principles at 2-31. But the GAO Principles support
such a conclusion only where adequate words of futurity have been
used. See id. ("[I]f the provision does not contain words of
futurity, repetition or non-repetition lead [sic] to the same
result — that the provision is not permanent."). No such words
exist here. Thus, the argument collapses of its own weight.
7
Even if we were to apply the canon of construction touted by
the appellees to the appropriations bill at issue here, it would
lead, at best, to an inconclusive result. This is so because
Congress used clear and adequate words of futurity in other
provisions of the appropriations bill, see, e.g., app. A § 135,
2000 U.S.C.C.A.N. at 2672A-31; app. B § 111, id. at 2762A-68, but
not in Section 634.
-18-
The Intervenors also float the suggestion that Section
634 is immune to the September 30, 2001 expiration because NOAA's
activities are funded by "no-year" appropriations. This suggestion
does not withstand scrutiny.
It is true that "[w]hen Congress expressly provides in an
appropriation . . . that it shall 'remain available until
expended[,]' all statutory time limits as to when the funds may be
obligated and expended are removed." Appropriations — No-Year —
Effect of Subsequent Limitations, 40 Comp. Gen. 694, 696 (1961),
1961 WL 1677, at *3. That means, however, that "limitations on .
. . specific items contained in such appropriations are to be
considered as available without regard to fiscal year unless
otherwise specified." Id. (emphasis supplied). "[T]he
availability of such appropriations is not changed by a later act,
except in such respects and to such extent as is expressly stated
or clearly implied by such act." Id. at 697.
The language upon which the Intervenors base their
suggestion reads: "For necessary expenses of activities authorized
by law for the [NOAA] . . . to remain available until expended . .
. ." 2000 U.S.C.C.A.N. at 2762A-74 to 75. This language appears
in Title II of Pub. L. No. 106-553. It appropriates funds for
specific activities of the Department of Commerce and its
constituent agencies and frees those appropriations,
notwithstanding any limitations thereon that are organic to the
-19-
appropriating language, from fiscal year limitations. Section 634,
however, is not organic to Title II's no-year appropriations. It
appears later in the Act as a separate and general provision under
Title VI and, as we already have determined, it contains no words
of futurity. The language to which the Intervenors advert
contemplates that the no-year funds are to be used for "activities
authorized by law." (Emphasis supplied). During the 2001 fishing
season, issuing permits that allowed the use of airborne spotters
in the hunt for bluefin would not have been authorized by law
because such an action would have flouted Section 634. Given the
limited temporal reach of that provision's language, however,
issuing permits containing a restriction on the use of airborne
spotters for subsequent fishing seasons would not have been
authorized, see supra note 3, and, thus, would be inconsistent with
the terms of NOAA's funding legislation.
III. CONCLUSION
We need go no further. Deciding what funds shall be
appropriated from the public fisc and how that money is to be spent
is a task that the Constitution places in the congressional domain.
Exercising that authority, Congress instituted a ban on the use of
airborne spotters that lapsed at the end of FY 2001. Congress can
continue the ban either by reinserting it in future appropriations
bills or by enacting separate substantive legislation. To date,
-20-
Congress has not taken any such step. We refuse to fill this void
by finding permanent law where none exists.
Because the ban articulated in Section 634 was not in
effect after September 30, 2001, the district court erred in
entering judgment for the appellees.
The order appealed from is reversed and the cause is
remanded to the district court with instructions that the court
grant the appellants' motion for brevis disposition and issue a
declaration of the parties' rights consistent with this opinion.
-21-