Friday, January 15, 2010

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.


Glen Spain said...

Dear KlamBlog --

PART 1 OF 2: Where there ARE errors in your analysis, or where you raise legitimate questions about what some provision of the Klamath Basin Restoration Agreement (KBRA) actually means, it is fair and reasonable to expect a response.

FIRST MAJOR POINT: I (Glen Spain) am a full-time Executive Staff and Northwest Regional Director for the organization and have been since 1992. I have also been General Legal Counsel for PCFFA as an organization since 1984, when I first started working on Klamath issues in a serious way. In fact, I helped write the Klamath River Basin Fishery Resources Restoration Act of 1986 (P.L. 99-552) which created both the Klamath Fishery Restoration Task Force and the Klamath Fishery Management Task Force, its twin sister organization to deal with ocean fisheries issues. I also served on the Klamath Task Force itself for some years, between the death of our mutual friend Nat Bingham and the appointment of PCFFA’s David Bitts, representing the California commercial fisheries slot.

As to the KBRA and its companion Klamath Hydropower Settlement Agreement (KHSA) dealing with dam removal, I have represented PCFFA at the negotiating table since the very first meetings with PacifiCorp in 2000, which were over their Draft Relicensing Agreement, which then evolved into the parallel negotiations process that resulted in the Settlement Agreements being reviewed today. I attended nearly every meeting during that time, tireless advocating for a restored river and recovery of its salmon fisheries on behalf of PCFFA and its members.

As to whether my decades of broad experience on Klamath policy matters gives me any special expertise on this topic, I will leave to the judgment of your readers.

SECOND MAJOR POINT: The Klamath Basin is certainly much better off today because of the Klamath Task Force’s efforts over the last 20 years than it would otherwise have been. You give it way too little credit.

However, remember that the old Task Force had a Congressional restoration budget of less than $1 million/year. That is not a lot of money to heal a basin larger than several US states. The KBRA, on the other hand, will both reprioritize and more efficiently use money already coming to the basin (roughly $60/year), but also bring an ADDITIONAL estimated $40 million/year to apply to restoration as well. This is about a 100-fold increase in budget from the paucity of funding for the Klamath Task Force.

Topics of dam removal and water reallocation were entirely off limits to the old Task Force, handicapping it greatly. Salmon recovery requires both. However, under the new Settlement Agreements, there are the central tasks to be performed.

The KBRA also establishes a science-based and science-driven process for evaluating and prioritizing the basin’s restoration needs up front, in the form of the Technical Advisory Team (TAT) (see KBRA Appendix D-2), plus a Klamath Basin Coordinating Council (KBCC) where both stakeholders and agencies are well represented to manage and oversee the process in a much more coordinated way (see KBRA Appendix D-1).

And most important, in light of your (to some degree justified) complaints about the old Task Force and the lessons learned there, the KBRA will have a MUCH more robust system of effectiveness monitoring, periodic reviews, real-time Internet-based project tracking, and Adaptive Management (see esp. Sec. 5.4) in order to assure that the restoration funding is well spent and all programs are efficiently managed (see also KBRA Sec. 12 (monitoring), and annual reports and reviews (Sec. 13.2 and 13.4)).

All this makes the KBRA a far better solution to the basin’s restoration needs than the old Klamath River Restoration Task Force could ever have been. Your complaints about the old Klamath Task Force definitely help make the case for the new approach of the KBRA.

--- Glen Spain, for PCFFA

Glen Spain said...

Dear KlamBlog --

PART 2 OF 2: With regard to your complaints in this posting about specific sections of the KBRA, especially Appendix A, KBRA subsection L, and your allegations that these are somehow intended to “tinker with bedrock environmental laws,” I stand behind what I commented to your prior post. There is not a shred of language in the Agreement that supports that misinterpretation, and much that works against it, as previously cited.

You are simply mistaking a standard boilerplate phrase that is typically inserted in legislative language so that no Court may IMPLY a change to statute from some other referred to non-statutory source, i.e. “…except as expressly provided in the federal legislation.” Were this limitation NOT present, someone might in fact try to use some strained interpretation of some obscure provision in the KBRA text seeking to imply a change in statute that was never intended by Congress. That additional phrase prevents it.

As to your allegations that Appendix B-1(a) somehow undercuts CEQA, you should also research the case law under CEQA. This provision, drafted and recommended by CEQA experts with the CALIFORNIA STATE ATTORNEY GENERAL’S OFFICE, merely follows existing CEQA case law and practice. Since the KBRA is intended to be only a FRAMEWORK for various future Plans and measures (such as dam removal), it makes no sense for the very simple act of signing the KBRA to be a CEQA-triggering event, when it is those Plans and dam removal measures coming much later that are the actual actions to be analyzed. Analyzable plan for those later measures do not yet exist – so how could they be analyzed? All this provision in Appendix B-1(a) does is make that standard practice clearer to prevent later pointless litigation.

When you criticize a provision you should read it in context and completely. Read provision Appendix B-1(b), which makes it crystal clear that these contemplated later Plans, and their various actual measures (all still to be created) are what triggers CEQA. To the extent that the KBRA simply calls for later Plans and actions, it is those later Plans and actions that are the “project” to be analyzed, not the mere creation of paperwork saying that these plans should be developed later. A “project” under CEQA has to be specific, not hypothetical.

As to judicial review, it is quite common for statutes to indicate the proper venue for filing lawsuits. In fact, the US Court of Appeals for the DC Circuit is the ONLY venue allowed under the Federal Power Act for such events as contesting FERC Orders or licenses. By broadening venue to include the 9th Circuit in Appendix A, KHSA provision F, this is a BROADER venue than if you went the FERC route. So what is the problem?

There must obviously be SOME changes to current law in order to make this work. For instance, transferring Keno Dam to the federal government requires Congressional approval. So does a major IMPROVEMENT in environmental laws that you ignore, which is making “fish and wildlife and national wildlife refuges” official purposes of the Klamath Irrigation Project for the first time ever (Appendix A, KBRA provision G). There will be plenty of opportunity for public input and vetting in all the usual legislative processes.

– Glen Spain, for PCFFA

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