Atlantic Fish Spotters Ass'n v. Evans

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.

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 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

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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.

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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.

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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

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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

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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

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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

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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"

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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.

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 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

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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

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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).

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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.

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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.

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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

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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.

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 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

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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,

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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.

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