The Water Deal - What do the tribes get?

Here’s a comment KlamBlog received recently:

Could you please post on why you believe the tribes to be such vocal advocates of this deal? It's unclear to me (from skimming the KBRA)exactly what the tribes get from this deal...and, given their history of (understandably) distrusting the government, I wonder what they're getting that we don't know about that's making them (Yurok and Karuk mostly) so pro-KBRA.

Here’s KlamBlog’s response:

First, it is important to understand that all Klamath River Basin tribal governments do not support the proposed Klamath Basin Restoration Agreement/KBRA (the Water Deal). The Yurok, Karuk and Klamath Tribes (based in Oregon and composed of Klamath, Modoc and Yahooskin Peoples) have indicated that they will sign the document in February. The Hoopa Tribe indicates that it will not sign unless issues involving tribal sovereignty and the Trinity River are first resolved.

The agreement requires signing tribes to waive certain rights and agree not to take future actions – including actions which would seek water from the so-called On Project Irrigators – the group KlamBlog calls the Irrigation Elite because of their wealth, political influence and the fact that they have traditionally received many advantages at the expense of taxpayers.

There are other federally recognized tribes in the Klamath River Basin. The Quartz Valley Indian Reservation (QVIR) located in the Scott River Sub-basin and the Resighini Rancheria located near the mouth of the Klamath River. These two tribes have not been involved in the negotiations and have not been asked to sign the KBRA.

There are also tribal organizations in the Basin that are not recognized by the federal government including the Shasta Nation and the Nor-Rel-Muk (a Wintun group based in Hayfork). The Siskiyou County based Shasta Nation has competing leadership groups; it is vociferously against the KBRA and dam removal.

It is also important to recognize that the governments of federally recognized tribes are just that – governments. The tribes are not the People; like all governments, a core motivation of tribal governments is building and maintaining their bureaucracies which provide jobs and services. Within each of these tribes there is both strong opposition and strong support for the KBRA. Many tribal members, however, indicate that they do not fully understand the complex agreement and its implication.

Only the Klamath Tribes has had a membership vote on whether or not to approve the KBRA.

The Hoopa Tribe told its membership about the KBRA at a general membership meeting in November. It recently mailed information on the Dam and Water Deals to all members. The Hoopa Tribe will also hold a forum on both the Water and Dam Deals in Hoopa on the evening of January 26th. Other tribes have held meetings to inform members about the Deals but – except for the Hoopa Tribe - none so far have invited environmental and other stakeholders to present to their memberships. It is not know whether other tribes will hold membership votes or simply rely on a vote of their respective tribal councils on whether or not to approve the Deals.

Now that we have given the outline of what is going on with “tribes” concerning the Dam and Water Deals we can turn to the question: What do tribes which support and will likely sign the KBRA get in return?

The first thing KlamBlog must answer is that the best way to find out what the tribes think they are getting (or not getting) is to ask them. These tribes all have web pages which provide current tribal government’s perspectives and positions on the Dam and Water Deals. In addition most Klamath Basin Tribes have media contact people who can be called on the phone. KlamBlog also invites any and all Klamath River Basin Tribes to publish here a statement of their positions on the Dam and Water Deals.

That said, some of these tribes have become media savvy; as a result, like other media savvy organizations, what we often get in their PR is spin. KlamBlog’s principle writer has worked for two of these tribes and with most of them for many years. The KlamBlog “answers” are based on that experience and on studying tribal positions on the Deals.

Federal tribes are governments and their motivations are many. Looking a little more closely at the proposed Klamath Basin Restoration Agreement we see substantial tribal government benefits if the Deal is enshrined in federal legislation:

• Certain federal tribes will get $65,250,000 over ten years courtesy of federal taxpayers. These funds will support the Yurok, Karuk and Klamaths Natural Resources Departments and fund economic development – including purchase of the Mazama Tree Farm for the Klamath Tribes.

• The federal tribes will get to participate in day-to-day decisions about water management. Along with the Bureau of Reclamation (BOR) and those irrigators who get water from the BOR (the so-called On Project Irrigators) tribal fisheries managers believe they will be able to manage future “environmental water” for the benefit of salmon and other tribal trust resources.
  

• Some of the tribes argue that the KBRA (Water Deal) is necessary to secure the support of On-Project Irrigators for dam removal and that without that support the dams would not come down. Many others (including KlamBlog) believe that deal – offered to the tribes by the Bush Administration – is not necessary to get the dams down. Furthermore, KlamBlog believes implementing the Water Deal contains provisions which will make it impossible to restore robust runs of Klamath Salmon.

• The KBRA calls for $53,159,000 over ten years for active restoration of salmon above the dams. The tribes favor active versus passive restoration once the dams are down. In passive restoration salmon, steelhead and lamprey will recolonize the Upper Basin on their own. But the tribes want to establish restoration hatcheries, raise and move salmon around and otherwise manage Chinook Salmon in order to restore them. The nub is that ESA-listed fish which reinhabit the Upper Basin on their own will have the full protection of the ESA; fish which are actively reintroduced are considered “experimental populations.” Federal managers can remove experimental populations at their discretion and these fish are not protected from “take”.
  

• The Klamath Tribes get an “interim fishing site” below Iron Gate Dam where they will be able to catch salmon until such time as they are restored to the tribe’s territory in the Upper Basin. The Shasta Nation says this is their ancestral territory; they oppose a fishing site for the Klamath Tribes in that location.

• The KBRA asks Congress to provide $322,495,000 over twenty years for fisheries restoration. Because they have chosen to use their regular BIA funding for other purposes, the Yurok and Karuk Fisheries Departments are dependent on competitive grants and contracts. With the end of the 20-year Klamath Fisheries Restoration Program a few years back these tribes became very dependent on grants from the Bureau of Reclamation and California Department of Fish & Game for funding to keep operating. KlamBlog believes that regular BIA funding for tribal governments should be used to support the base operations of tribal natural resource departments in order to insulate these important functions from dependence on grant funding and politics.

Deals which exchange or subsume tribal water rights in exchange for tribal government and restoration funding are becoming commonplace in the West. Whether we have a Republican or a Democrat in the White House, the dominant society has recognized for some time that if western tribal water rights were realized, the tribes would be in control of a substantial portion of the West’s water resources.

So much power in the hands of tribes is not acceptable to western and national elites. Therefore they have been working quietly and diligently to negotiate settlement of those claims. Most of those settlements involve tribes giving up their rights to water – or the right to assert water claims which amounts to the same thing – in exchange for money. The Western Governors Association, Western Regional Council and the Native American Rights Fund are among the powerful interests which support this approach.

Each water deal must be analyzed in depth in order to reach a judgment as to whether it is fair, appropriate and in the interest of the Indigenous Peoples whose rights are on the line. Future generations should also be considered.

In the Klamath instance, it appears to KlamBlog that the Klamath Tribes have negotiated a good and fair settlement whereas the Yurok Tribe has not. Pursuant to western water law, the Karuk Tribe does not have a water right. However, KlamBlog can not understand why the Karuk Tribe has not insisted on obtaining a subsistence fishing right as a result of this deal. The Karuk Tribe is unlikely to ever again posses the leverage it now has to obtain such a right which has been the objective of the Karuk People for many years.

KlamBlog supports the right and the moral duty of tribal governments to do what they believe is right when it comes to the water rights of their people. We have observed, however, that tribal leaders and tribal members often do not understand what is at stake in these deals. In our opinion, white men (typically white male lawyers) are too often advising tribal governments to make deals which are not in the best long-term interest of the people. Some traditional leaders believe that water is sacred and therefore that it should not be bought and sold.

Siskiyou County Supervisors seek Diane Feinstein’s help to deliver their anti-environmental message

Siskiyou County Supervisors like Congressional Earmarks – at lest that is what one would conclude from looking at a list of funding earmark requests which they voted recently to forward to California Senator Diane Feinstein. They want DiFi to get them $6 billion for one water project and $10.5 million for 4 other projects.

All the projects have an environmental and regulatory nexus. Apparently the Siskiyou County Supervisors think the federal government should be responsible for funding Siskiyou County’s compliance with environmental laws and regulations it has at times ignored and at other times attacked viciously.

Below is an article from the Siskiyou Daily News concerning these requests for funding "earmarks" here is what they are requesting:

• The top request is funding for a facility to receive and dispose of sludge pumped from septic systems in the county. The North Coast Water Quality Board ordered the present disposal site closed after Klamath Riverkeeper threatened to sue the county because the facility was being operated without a permit and without monitoring whether human waste is contaminating groundwater at the site.

• A request for $2 million for a “Klamath River fish disease study” appears to be motivated by a desire to undermine the science on Klamath River fish diseases - possibly to challenge dam removal or the Klamath River Water Pollution Clean Up Plan (TMDL) being developed by the North Coast Water Board. Last year Thompson and Feinstein got the USFWS an earmark for Klamath River fish disease studies. That money, however, went to the US Fish and Wildlife Service which has been studying Klamath fish diseases since the disastrous die-off of an estimated 60,000 plus adult salmon during the 2001 salmon spawning migration.

• The big ticket item is a request for $6 billion to build the "Shasta Valley Diversion" - an attempt to provide surface irrigation water to farmers and ranchers who currently pump groundwater in the Shasta River Valley.

Klamath River activist Felice Pace has suggested that a Klamath River Diversion could be substituted for the unreliable irrigation water supply from Dwinnell Reservoir (aka Lake Shastina). This would clear the way for removal of Dwinnell Dam which blocks salmon passage and is associated with the extirpation of Spring Chinook Salmon from the Shasta River watershed.

But the Siskiyou Supervisors want to give that water to farmers who now rely on groundwater. It is unclear whether Siskiyou County would require that farmers receiving that water agree not to pump groundwater. While developers must prove no impact before they are allowed to extract more water, groundwater pumping for irrigation is unregulated in Siskiyou County. In the Scott Valley the Siskiyou RCD and Klamath EQIP have funded new stockwater and irrigation wells without requiring relinquishment or forbearance agreements on stream and river diversions.

It is also unclear whether Siskiyou County or anyone else could successfully obtain a right to divert more Klamath River Water. Such permits must be granted by the California State Water Resources Board.

The Siskiyou Daily quotes the Siskiyou Supervisors as being skeptical that Ms. Feinstein will take on their wish list. One supervisor thought it was too long and in cases unrelated to federal actions and programs. From this it appears that Siskiyou County’s supervisors are mainly interested in delivering a political message to the state’s senior senator. Senator Feinstein sits on the Appropriations Committee; if she wants an earmark, it usually happens.

KlamBlog would like to know if other Klamath River Basin Counties are making earmark requests to Congress. If you have the information please share it by making a comment on this post or sending the information to KlamBlog by another means.


Here’s the article from the Siskiyou Daily News:

Shortened county ‘wish list’ to go to Feinstein’s office
By David Smith
Daily News
Fri Jan 22, 2010, 10:16 AM PST

Yreka, Calif. -

The Siskiyou County Supervisors’ list of requests for Sen. Dianne Feinstein’s earmark appropriations has been pared down and approved by the board, with a list of five priority projects set to make the trip to Feinstein’s office.

The projects were ordered according to the priority assigned by the supervisors in conjunction with County Administrative Officer Brian McDermott.

First on the list is a request for $4 million to create a sludge receiving facility. The need for a new facility, according to the list, arises from the recent closure of the county’s existing facility by the state’s water quality control board for failing to meet state guidelines for septage ponds.

The list states that the project would consist of constructing a new facility or partnering with a municipality that may be able to modify an existing sewage treatment facility.

The number two priority is $2 million for a Klamath River fish disease study, with the Scott River Total Maximum Daily Load (TMDL) Direct Inventory of Roads and Treatments implementation on county-maintained roads taking the third spot.

That project, for which $6 million is requested, would repair and upgrade roads in the Scott River watershed that have been identified by the Scott River TMDL as potential sediment sources affecting anadromous fish populations.

Priorities four and five are the Siskiyou County Airport Infrastructure Improvement Plan and the Shasta Valley Diversion, with the requested amounts at $3,500,000 and $1 billion, respectively.

The airport project justification listed reads, “The Siskiyou County Airport is a former WWII military base that serves as the primary airport for commercial aviation activities in the county.

“This project would replace 50 year old water and wastewater systems to better facilitate commercial development of this county asset.”

The Shasta Valley Diversion would include the construction of a diversion from Iron Gate Dam to the Shasta Valley that would carry 60,000 acre-feet of water for the Siskiyou County Water Conservation and Flood Control District. The list suggests that the Klamath River’s warm and nutrient-rich water could potentially increase agriculture production by 50 percent and allow four irrigation districts to access a non-groundwater supply.

Board Chair Marcia Armstrong said that the Siskiyou Resource Conservation District (RCD) had presented her with a list of small projects that could be added to the number three priority to address such issues as diversions, riparian fencing and upland sediment management, among other issues.

District 1 Supervisor Jim Cook said that he still felt that sending a long list of requests would not work and that the board should focus on finding projects with a “federal connection.” He added that the list, as presented, would be like “sending a list to Santa Claus.”

District 2 Supervisor Ed Valenzuela also expressed reservations about sending a list with a high number of requests.

Armstrong, responding to Cook, said that a number of the requests on the list are for projects that would bring the county into compliance with a number of federal regulations, including the Endangered Species Act and the Clean Water Act, among others.

District 3 Supervisor Michael Kobseff said, “We need to educate Washington on our needs and lack of funding,” saying that he feels the earmark request period is an opportunity to possibly receive funding to meet regulations that the county is struggling to meet on its own.

District 4 Supervisor Grace Bennett continued that sentiment, saying that she does not believe that any of the projects will be approved, but  thinks it will show we are aware of the issues and our limitations in addressing them.

The motion was put forward to approve sending priorities one through five, with number three amended to add the Siskiyou RCD suggestions. The board approved the list 4-1, with Cook voting no. He did state afterward that he would be willing to meet with Feinstein’s staff in order to emphasize the federal connection of the projects and to see how the senator’s office assesses the requests.  

Glen Spain’s “errors”

Glen Spain – the Eugene-based lawyer who represents the Pacific Coast Federation of Fishermen’s Association (PCFFA) on Klamath River issues - is fond of claiming that KlamBlog just does not understand the Dam and Water Deals and therefore that KlamBlog readers need his posts and comments to get the truth. Spain has emerged as one of the main proponents of the Deals which were finalized for “public review” in recent weeks.

The board of directors of PCFFA has backed Spain – voting to approve the Deals even before they knew what final documents would contain. This occurred in spite of significant opposition by current and past commercial salmon fishers – including members of PCFFA.

PCFFA’s board is headed by Eureka-based fisherman Dave Bitts. Bitts represented the organization for many years on the Klamath Restoration Task Force established by the 1986 federal Klamath Act in order to restore Klamath River fisheries. Popularly known as the “Klamath Task Force” this group’s recommendations controlled virtually all restoration decisions – including where 20 years of restoration funds - about $40 million dollars - were spent. Over that period, wild Klamath Coho and Chinook salmon stocks – the target for Task Force restoration - continued to slide toward extinction.

KlamBlog believes the Klamath Task Force is responsible for the Klamath Act’s failure because the group’s funding decisions (technically “recommendations” to CDFG and federal agencies) were based on you-scratch-my-back-I’ll scratch-your-back deals. In the Scott River Sub-Basin, for example, the Task Force and the California Department of Fish and Game funded “riparian planting” along the same stretch of river at least four times in spite of the fact that restorationists knew the plantings would be blown out during the next major storm event.

The Task Force also rejected requests that the effectiveness of projects it funded be evaluated before more funding for the same activity was provided. In similar fashion, Water Deal parties rejected language suggested by the Klamath Forest Alliance which would have required effectiveness evaluation of restoration projects. No evaluation of funded projects = no accountability = restoration failure.

The Task Force, CDFG and the federal agencies have colluded in the ongoing dewatering of the Scott River and the extirpation of Coho from that drainage. Their work on the Shasta has not been much better. Most importantly, the Task Force not only failed to approve projects to purchase and retire water rights in the Shasta and Scott but also provided the “cover” of restoration funding to mask what was really going on.

KlamBlog knows this history because our principle reporter was there from the beginning – monitoring the Klamath Restoration Task Force first for Marble Mountain Audubon and then for Klamath Forest Alliance.

Dave Bitts and PCFFA say that the current Klamath Deals should be accepted because they will bring restoration money to the Klamath. The Water Deal – the proposed Klamath Basin Restoration Agreement - seeks to establish a restoration program where funds are distributed based on political rather than restoration criteria. This is a recipe for continued restoration failure, the extirpation of Coho and continuing depressed production of Klamath Chinook Salmon.

That is the background on Glen Spain and PCFFA; now for Spain’s claims of KlamBlog “errors”:

First Spain takes a pot shot:

"...fundamental errors in your above analysis of the recently released final draft of the KBRA that need to be pointed out, and which might not be obvious to your non-lawyer readers.”

In other words, these documents are too complex for the citizens of the Basin to understand so y’all need Glen Spain to explain them to you.

Next Spain points out the first KlamBlog “error”:

Spain: "The supposedly scary legislative language you cite in KBRA Appendix A, far from being a way to “tinker with bedrock environmental laws,” is standard legislative language “boilerplate” to PREVENT that from happening, even by implication."

Below are examples from KBRA Appendix A and B which we think “tinker” with provisions of statutes which were expressly designed and enacted to protect the environment. We trust KlamBlog readers to decide for themselves whether Spain’s view of reality or KlamBlog’s view comports with the actual text of the Water Deal:

• Appendix A, item J: Provide for judicial review of a decision by the Secretary affecting rights or obligations created in Sections 15.3.5.C, 15.3.6.B.iii, 15.3.7.B.iii, 15.3.8.B, and 15.3.9 under the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
  

• Provide that nothing in the KBRA title of the legislation shall: determine existing water rights, affect existing water rights beyond what is stated in the KBRA, create any private cause of action, expand the jurisdiction of state courts to review federal agency actions or determine federal rights, provide any benefit to a federal official or member of Congress, amend or affect application or implementation of the Clean Water Act, Endangered Species Act, Federal Land Management Policy Act, Kuchel Act (Public Law 88-567), National Wildlife Refuge System Improvement Act of 1997 (Public Law 105-57), or supersede otherwise applicable federal law, except as expressly provided in the federal legislation. (emphasis added)
  

• The KBRA title of the legislation shall provide that the provisions of the KBRAare deemed consistent with 43 U.S.C. § 666.
  

• Provide jurisdiction for judicial review of the Secretarial determination in the U.S. Court of Appeals for the 9th Circuit or the D.C. Circuit.
  

• Further provide that: “Notwithstanding Section 10(c) of the Federal Power Act, this protection from liability preempts the laws of any State to the extent such laws are inconsistent with this Act, except that this Act shall not be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.”
  

• Provide that nothing in the KHSA title of the legislation shall: modify existing water rights; affect the rights of any Tribe; or supersede otherwise applicable federal law, except as expressly provided in the legislation. (emphasis added)
  

• The following activities related to restoration of the Klamath Basin are not a "project"as defined in (California) Public Resources Code section 21065 (CEQA): (1) Execution of the Klamath Hydroelectric Settlement Agreement; (2) Execution of the Klamath Basin Restoration Agreement; (3) A request to the California Public Utilities Commission to establish a surcharge to fund dam removal activities pursuant to the Klamath Hydroelectric Settlement Agreement, or the California Public Utilities Commission's action on such request.
  

Here’s Spain’s second alleged “error” –

Spain: "Nowhere in the KBRA or any of its Appendices does it say or imply that any environmental laws will be changed. In fact, just the opposite. Provisions at Secs. 2.1, for instance, state plainly: “In the implementation of this Agreement, Public Agency Parties shall comply with all applicable legal authorities, including … National Environmental Policy Act (NEPA), Endangered Species Act, Clean Water Act, and other Applicable Law.” See also Sec. 2.2.7 “No Alteration of Environmental Review.” Similarly in Sec. 20.5.4.A “No waiver of federal Clean Water Act requirements or of comparable state water quality standards…. is intended by any provision of this Agreement.” Likewise every regulatory assurance mentioned in Secs. 21-22 are to be provide ONLY IN ACCORDANCE WITH APPLICABLE LAW."

Glen Spain knows very well that in this era direct attacks on environmental laws are doomed to failure. As a result, every attempt to circumvent environmental laws now begins by claiming to uphold those laws. Then comes the fine print. For example, the KBRA claims it will follow CEQA. Then it goes on to define that its core decisions “are not a project pursuant to CEQA.” But what is defined as a “project” is the heart of CEQA; if it’s not a “project” it does not get CEQA review – period. There is a ream of case law on what is and what is not a “project’ under CEQA. Rather than comply with this case law, Spain and other deal promoters simply define decisions about the fate of the Klamath as not a “project”. Spain’s claim that CEQA is upheld by the Deals is therefore disingenuous.

Another slippery provision of these Deals is the one that says judicial review of any lawsuits challenging the Deals will be in the DC Circuit. It is well known that among federal circuit courts, the DC Federal Circuit is most favorable to corporations and government and least favorable toward environmental organizations and causes.

Absent this provision, review would be in the Ninth Circuit – which is generally regarded as the most environmentally minded federal circuit court. This is one way to get around environmental laws: make sure those cases are in the court which is most hostile to environmental interests. Forcing review of lawsuits to take place in Washington DC also makes challenging the Deals more expensive and may preclude challenges from some grassroots environmental and community organizations.

There is one area where Glen Spain and KlamBlog likely agree: only when we see the actual federal and state legislative language will we know the extent to which the nation’s and California’s environmental laws – and environmental statutes in other laws - are upheld or undermined.

Spain and the other promoters have become clever in this regard. The first draft of the KBRA released had the actual legislative language promoters want in the appendices. But this showed where the mischief was planned. Therefore, in the Public Review Draft recently released, promoters do not include legislative language but rather a list of items they want in legislation. KlamBlog believes this was done to hide the legislative intentions of deal-makers and to provide “cover” to the politicians it hopes will do their bidding.

Those who want bedrock environmental laws upheld should contact their federal and state senators and representatives. Tell them to uphold ALL environmental provisions applicable to these Deals and to actively resist and oppose Deal promoters desire to avoid these provisions even as they claim to uphold “bedrock environmental laws”.

KlamBlog will be watching what the politicians do; we will let you know whether or not Klamath legislation introduced does or does not undermine our bedrock environmental statutes or the environmental provisions which are part of other laws.

Stay tuned.

Yuroks take Klamath deals to the Del Norte County Supervisors – Final KBRA draft opens door to tinkering with bedrock environmental laws

In a bid to build support for dam and water deals they are promoting, the Yurok Tribe will make a presentation tomorrow – Tuesday January 12th at 11 AM - to the Del Norte County Board of Supervisors in Crescent City. This comes in the wake of Friday’s announcement that a final version of the controversial and costly Klamath Basin Restoration Agreement (KBRA) had been produced and would be released for public review. That document - along with the fianl version of the Klamath Hydroelectyric Settlement Agreement - is now available on line. These final versions are called "public review drafts" but it is clear promoters intend them to be the final versions.

The proposed KBRA does have one provision which would apply to Del Norte County and would require approval by the Del Norte County Board of Supervisors. Here’s that provision from page 169 of a very long document:

• “ Del Norte County agrees not to file a claim in federal or state court, or before theCalifornia Board of Control or any other administrative agency, against the State of California, the State of Oregon, any state agency, department, division or subdivision thereof, or the United States, arising from any decrease in property tax revenue or alleged business or economic losses, including property values, due to Facilities Removal.”
  

If the supervisors agree to this provision they could not subsequently take action if there were any damage to land or public resources here in Del Norte County which results from release of sediment or from any other cause during facilities removal. This would be akin to “buying a pig in a poke” as the old saying goes. Similar provisions applying to Humboldt and other counties with land inside the Klamath River Basin are also in the Public Review Draft released Friday.

It had been suggested to at least one Del Norte supervisors that they also hear from those who do not support the Deals including Del Norte County based Friends of Del Norte. However, only the Yurok Tribe is listed on the agenda for tomorrow’s meeting.

The item is identified on the agenda as a “workshop” which indicates that board action on the Yurok’s presentation will not be taken at the meeting.

In spite of the fact that they have jurisdiction on the lower portion of the Klamath, the Del Norte Supervisors were not included in negotiations which – over the course of over two years – expanded from the fate of Klamath River dams to include water management, restoration funding and a long list of subsidies. In the course of those two years two groups were kicked out of the confidential negotiations and other entities – including the Hoopa Tribe and the Northcoast Environmental Center - have said they can not support the resulting deals.

Now that the deals are final, the focus of Klamath politics shifts to the Obama Administration and to Members of Congress. Will the Obama White House support a process that originated with the Bush Administration, would sacrifice the Klamath refuges and which some say totally ignores the recommendations of the only independent scientists to evaluate what is needed to restore Klamath salmon? Will members of the California and Oregon Congressional Delegations carry legislation essentially written by PacifiCorp and other promoters of the deals or will these members fix some of the problems opponents of the deals say threaten world-class Klamath Wildlife Refuges and preclude the recovery of Klamath Salmon?

No one as yet knows the answer to these questions. While North Coast California Congressman Mike Thompson recently declared that he hopes to introduce Klamath River legislation in January with an unnamed Oregon congressman it is unknown whether he will simply take the deals promoters have produced and turn them into federal legislation or whether he will listen to constituents who want him to fix what they say are errors and environmentally-damaging provisions in the deals.
_______________________

The Public Review Draft of the KBRA released on Friday is 369 pages long and will take some time to review. However KlamBlog has taken a look to see if the claims of promoters that the legislation would not seek to amend or compromise the nation’s bedrock environmental laws are born out in the language of the agreements. Here is the applicable language from Appendix A of the KBRA:

• Provide that nothing in the KBRA title of the legislation shall: determine existing water rights, affect existing water rights beyond what is stated in the KBRA, create any private cause of action, expand the jurisdiction of state courts to review federal agency actions or determine federal rights, provide any benefit to a federal official or member of Congress, amend or affect application or implementation of the Clean Water Act, Endangered Species Act, Federal Land Management Policy Act, Kuchel Act (Public Law 88-567), National Wildlife Refuge System Improvement Act of 1997 (Public Law 105-57), or supersede otherwise applicable federal law, except as expressly provided in the federal legislation. (emphasis added)

That is a very big “except” at the end. What it indicates is that parties to the deals have agreed to tinker with aspects of the ESA and other environmental laws but want to keep their intentions and the specifics of the tinkering hidden. You can be sure, however, that KlamBlog as well as environmental organizations which seek to change environmentally damaging provisions of the KBRA will be on the look out to see if such mischief or tinkering makes its way into federal legislation. It is hoped that avowed environmental champions like Mike Thompson, Peter DeFazio and Barbara Boxer will not abide tinkering with the ESA, CWA and other bedrock environmental laws or with mischief about how those laws are applied within the Klamath River Basin.

Final Klamath Deals may be released this week – Klamath Tribes embroiled in conflict.

Remaining members of the Klamath Settlement Group are meeting in Sacramento this week. The group hopes to finalize drafting of the Water and Dam Deals it has been working on for the last couple of years and to release these documents for public review. The latest schedule released by the group calls for parties to sign the combined deals in mid-February. However, this group has missed deadlines many times before and these new deadlines may slip as well.

Much in these deals can be implemented immediately; some provisions are, in fact, already being implemented. But the more controversial provisions – including mandating a first call on water to irrigators, golf courses, lumber mills and other water users within the federal Klamath Project – are illegal under current law and therefore can only be accomplished via federal legislation. Other provisions – like granting Klamath Project Irrigators the right to “take” Bald eagles, Kuptu, Tsuam and other California “fully protected species” – are illegal under state law and thus require state legislation.

In a recent electronic town hall meeting, Congressman Mike Thompson indicated that he would carry legislation with an unidentified “Oregon congressman” to implement the Klamath Settlement Group’s Dam and Water Deals (see KlamBlog’s December 14th post). The newly formed Klamath Conservation Partners coalition, however, wants Mr. Thompson to consider all proposals – including the so-called “clean dam bill” approach – before drafting Klamath legislation.

Others have questioned the wisdom of making a special funding allocation for Klamath River Basin salmon restoration as proposed in the deals. In recent decades salmon restoration funding has been appropriated on a regional basis. A return to basin-by-basin salmon restoration funding could set off a political fight among restorationists from different basins over restoration funding. About 1/3rd of the nearly $1 billion taxpayer dollars called for in the Water Deal would be allocated to restoration; the remainder is subsidies to irrigators, tribes and counties. With record budget deficits expected again in 2010, the high cost of the deals could be an impediment to passing legislation to implement them.

Meanwhile, there is a major conflict within one of the tribes which has promoted the deals. At a November general council meeting, about 50 members of the Klamath Tribes voted to remove all but one member of the current tribal council. The following Monday a group of members tried to remove these folks physically from tribal offices in Chiloquin, Oregon. However, the Bureau of Indian Affairs, which oversees tribal government operations, has written a letter indicating that the removal action was illegal because proper procedures were not followed. There is another General Council meeting on January 9th at which dissidents may again try to remove Council members.

It is not known whether the conflict has anything to do with the proposed Water and Dam Deals or how a change in the tribal council make-up could impact the Tribe’s position on the deals. Comments on Chiloquin web sites indicate that the conflict is more about services, management of the Tribe’s casino and the manner in which payments are made to tribal members.

In tribal governments with the general council system all major actions of the tribe must be approved by a council in which all adult members have a vote. Among Klamath River Basin federally recognized tribes the Quartz Valley Indian Reservation also uses a general council system. The Karuk, Hoopa and Yurok Tribes operate on a system where the vote of representatives elected to a tribal council can make final decisions without the vote of the membership. Another Klamath River Basin native group - the Shasta Nation - is not federally recognized.

In other tribal news, traditional Yurok-Karuk ceremonial leader Chris Peters has requested an audience with the Yurok Tribal Council to discuss “significant and far reaching cultural and spiritual issues” associated with the Dam and Water Deals. A date for that audience has not been set.

Grange Leader David Lewis on Klamath River issues

KlamBlog has received a response to our request for more information on the Grange and the organization's position on the proposed Klamath Basin Restoration Agreement (KBRA). The following is from David Lewis of Bodega Bay. David is president of the Bodega Bay Grange and chairman of the California State Grange Water Committee. Here’s what David sent to supplement our last post:

THE GRANGE STARTED AS A PROGRESSIVE AND ACTIVIST ORGANIZATION WITH THE INTENT TO INFLUENCE NATIONAL AND STATE POLICIES THROUGH LEGISLATION. TO THAT END, THE GRANGE STILL MAINTAINS AN ACTIVE LEGISLATIVE STRUCTURE. THE NATIONAL GRANGE OFFICE BUILDING IS JUST TEN BLOCKS FROM THE WHITEHOUSE, HAS A LEGISLATIVE DIRECTOR AND A DOZEN LEGISLATIVE COMMITTEES STAFFED BY NON-SALARIED MEMBERS AROUND THE COUNTRY.

THE GRANGE TAKES SOME CREDIT FOR THE REA (RURAL ELECTRIFICATION ACT) AND THE RFD (RURAL FREE – POSTAL –DELIVERY) AMONG OTHER SIGNIFICANT 1930'S IMPROVEMENTS TO RURAL LIFE AND FAMILY FARMERS. AS YOU SUGGEST, THE GRANGE HAS LOST SOME WEIGHT SINCE THOSE DAYS.

THE CALIFORNIA STATE GRANGE (CSG) IS HEADQUARTERED IN SACRAMENTO AND IS SIMILARLY ORGANIZED. I AM RESPONDING TO YOUR POST AS CHAIRMAN OF THE CSG WATER COMMITTEE.

THERE ARE MORE THAN A HUNDRED ACTIVE COMMUNITY GRANGES IN CALIFORNIA. THESE GRANGES SEND DELEGATES TO A STATE CONVENTION EACH FALL WHERE THE DELEGATE BODY VOTES ON RESOLUTIONS FROM AROUND THE STATE. IF ADOPTED, THESE RESOLUTIONS BECOME CSG POLICY AND SUBJECTS OF LEGISLATIVE ACTION. A FEW OF THE CSG RESOLUTIONS ARE TAKEN TO THE ANNUAL NATIONAL GRANGE CONVENTION. OUR KLAMATH RIVER BASIN RESTORATION RESOLUTION WHICH YOU HAVE POSTED IN ITS ENTIRETY HAS FOLLOWED SUCH A COURSE AND IS NOW BEING PRESENTED TO LEGISLATORS FOR ACTION.

THE CSG IS MADE UP OF FAMILY FARMERS IN RURAL COMMUNITIES AROUND THE STATE, EXCEPT FOR A HANDFUL OF NORTH COASTAL AREA GRANGES WHICH ARE CONSIDERED TO REPRESENT FARMERS OF THE SEA. COMMUNITIES SUCH AS BODEGA BAY (WHERE I LIVE), FORT BRAGG, EUREKA AND CRESCENT CITY HAVE GRANGES WHOSE MEMBERS ARE COMMERCIAL OCEAN FISHERMEN. TROLL- CAUGHT WILD SALMON IS THE MAJOR PRODUCT OF THESE FISHING COMMUNITIES. MOST OF THE SALMON HARVESTED BY THESE FOLKS ARE, OR WERE, SPAWNED IN THE KLAMATH RIVER.

AS YOU INDICATED, THE CSG OF THE 1990'S BECAME ANTI-ENVIRONMENTALIST PROPERTY- RIGHTS ADVOCATES. THE ENDANGERED SPECIES ACT (ESA) BECAME ANATHEMA TO SOME FARMERS AND LAND OWNERS IN NORTHERN CALIFORNIA. I DON'T THINK THERE WAS EVER A RESOLUTION TO OPEN A HUNTING SEASON FOR SPOTTED OWLS JUST TO PROVE THERE WERE PLENTY OF THEM. THERE WERE, HOWEVER, RESOLUTIONS AND LAWSUITS FOUND IN GRANGE POLICIES TO UNDO THE ESA AND TO HAVE COHO SALMON DELISTED AS ENDANGERED IN THE WATERS OF THE KLAMATH RIVER. AFTER 2000, FISHING GRANGES PERCEIVED UNFAIRNESS IN THE USE OF THEIR DUES MONIES TO PROMOTE POLICIES AGAINST THE PROTECTION OF SALMON FISHERIES.

MOST RECENTLY, THE PROPOSALS TO REMOVE FOUR POWER DAMS FROM THE KLAMATH RIVER HAVE GENERATED A SHARP DIVISION BETWEEN LAND FARMERS AND SEA FARMERS IN THE CALIFORNIA GRANGES. ALL ELEVEN SISKIYOU COUNTY GRANGES ADVOCATE KEEPING THE DAMS WHILE GRANGES IN DEL NORTE, HUMBOLDT, MENDOCINO AND SONOMA COUNTIES SUPPORT REMOVING THE DAMS.

THE DAMS ARE NOT THE ONLY ISSUES RELATED TO THE HEALTH OF THE KLAMATH RIVER. OTHERS INCLUDE HABITAT DEGRADATION, FLOW MANAGEMENT, WATER RIGHTS AND WATER QUALITY. THESE ARE THE ISSUES OUR RESTORATION RESOLUTION WANTS TO SEE ADDRESSED. BUT, YOU SAY, "WHAT'S WRONG WITH THE KBRA?"

SISKIYOU COUNTY GRANGERS AGREE WITH THE REST OF US THAT KBRA IS DEFECTIVE WHEN IT DECLARES THAT IT REPRESENTS ALL REAL STAKEHOLDERS AND IN ITS INCOMPLETE DISCUSSION OF WATER FLOW ALLOCATIONS AND MANAGEMENT. THEY ALSO DON'T LIKE IT BECAUSE IT EMBRACES THE DAM REMOVAL. THE KBRA ALSO FAILS TO DEAL WITH HABITAT IMPROVEMENT AND WATER QUALITY ISSUES. THE GRANGE BELIEVES THAT THESE ARE ALL IMPORTANT ISSUES TO ADDRESS.

YOU ARE CORRECT TO SAY THAT THE GRANGE AND ITS LEADERSHIP HAVE CHANGED. AT THE CONVENTION WHICH ADOPTED OUR RESOLUTION, THE NEW "PROGRESSIVE GREEN" MEMBERSHIP ELECTED A MAJORITY OF NEW LEADERS. YES, GREEN IS MORE THAN JUST A COLOR IN TODAY'S GRANGE. MEMBER GRANGES ARE MADE UP OF ORGANIC FARMERS WHO THINK IN TERMS OF FARMERS MARKETS (WITH FRESH FISH) AS WELL AS TRADITIONAL CROP-ORIENTED FARMERS. EVERYONE AGREES THAT WATER IS THE MOST IMPORTANT INGREDIENT FOR FISHERIES AND FARMERS.


In his message transmitting the statement above David Lewis added this:

ONE OTHER THING YOU MAY INSERT INTO MY LIST OF GRANGE DISLIKES OF THE KBRA IS THE LACK OF TRANSPARENCY IN THE KSG PROCESSES.

KlamBlog is in full agreement: Secrecy breeds mischief and there is plenty of that in what the KSG – the Klamath Settlement Group – has produced.

Readers who desire more information on the Grange or who have questions can contact David Lewis at:
PO Box 1241
Bodega Bay CA 94923
Ph.707-875-3695
davidcl@comcast.net