Statement on Signing the Klamath River Basin Fishery Restoration Bill

October 27, 1986

I am pleased today to approve H.R. 4712, a bill that authorizes the Secretary of the Interior to promulgate regulations to increase the stock of fish in the Klamath River Basin and related areas. In signing this bill, I am stating my interpretation of certain of its provisions in order to make certain that the bill is implemented in a constitutional manner.

First, the bill requires that certain restoration work be performed by unemployed persons who are commercial fishermen, Indians, or other persons whose livelihood depends upon commercial resources in the area. If the reference to Indians were an express racial classification, a serious constitutional issue would be raised. I understand from the legislative history of the bill that this reference, however, is not to be viewed as a racial classification, but simply as a reference to one of the groups whose members are most likely to depend on the commercial resources of the area. Accordingly, I sign this bill understanding that the Secretary of the Interior will give preference in employment only to Indians whose livelihood depends on the area's resources.

Second, the bill establishes a council composed of members appointed by State Governors, Federal agencies, and an Indian organization. Because the members of the council are not appointed pursuant to the appointments clause, they cannot undertake executive functions pursuant to Federal law. Therefore, section 3(b)(1)(B) of the bill makes clear that the council has a purely advisory function, which consists of making recommendations based on a plan it establishes to manage the fish populations of the river basin and of holding hearings on these recommendations.

The bill also establishes a task force composed of members appointed by State Governors, county officials, Federal agencies, and an Indian organization. Like the council, the task force, which consults with the Secretary when he establishes and implements a program to increase the fish populations of the river basins to optimum levels, has only advisory functions. The bill requires the Secretary of the Interior and the director of the California department of fish and game to provide support for the task force. Because a serious constitutional question would be presented if the bill were interpreted as a direction to a State to place State employees directly at the disposal of the Federal Government, I interpret this provision to require the California official to provide support only for those members of the task force appointed by California State officials. Any additional assistance would necessarily be in the discretion of the State official.

Finally, the bill requires the Secretary of the Interior to enter into a memorandum of agreement with the California department of fish and game to facilitate the enforcement of fishery harvesting regulations. Since State officials, who are not appointed under the appointments clause of the U.S. Constitution, may not constitutionally perform executive functions under Federal law, I understand that the Secretary of the Interior will ensure that the agreement with California is drafted in such a way as to avoid this infirmity.

Note: H.R. 4712, approved October 27, was assigned Public Law No. 99 - 552.