Monday, September 19, 2011

Before the storm – Behind the scenes

The Coming Storm

In Klamath Country the late summer lull is about to end.  As light wanes and nights become chill the Klamath River – and its controversial Dam and Water Deals - are about to be in the national headlines again. Soon after the Fall Equinox the environmental report needed to “inform” a decision on the Deals by Secretary of Interior Ken Salizar will come out in draft form.  That will kick off a round of review, hearings, teach-ins, newspaper reports and attempts by promoters, opponents and those who favor key improvements to promote their different views on the Klamath Dam and Water Deals. 

For these extraordinary and perhaps unprecedented* Deals to work, however, and before the Secretary makes his decision, Congress must pass a bill authorizing the unusual Deals. According to at least one of the tribe’s promoting them (the Klamath Tribes), Congress will have to come up with the full price tag for the KBRA or Water Deal. That price tag is nearly $1 billion dollars over ten years.

It is hard to imagine that legislation with a billion dollar price tag could make it through a divided and cash strapped Congress even if powerful forces were not opposed.  And powerful forces are opposed including Northern California congressman Tom McClintock (R), the Hoopa Tribe, the basin’s Tea Party groups and (presumably) other federal tribes across the nation whose budgets would be raided to provide the tribal share of the ten-year price tag. 

Strange things can happen in Congress, however, when powerful interests stand to gain. In the Klamath case the big winners in the Deals are members of not one but three of the West’s most powerful interests:
           --    A Power Utility and its major investors
           --    Large private irrigation interests receiving taxpayer subsidized water from federal agencies
           --    Federal Land and Resource Agencies

Warren Buffet: his investment company – Berkshire-Hathaway – owns PacifiCorp and five Klamath River Dams.  

When someone with the power and influence of a Warren Buffet want legislation to go through the US Congress, many obstacles can be overcome.  Buffet’s Berkshire Hathaway owns PacifiCorp which owns the Klamath Dams.  Compliance with all laws would make the dams a money loser and going the formal route to dam removal would cost investors/shareholders. The Dam Deal is a much cheaper alternative for PacifiCorp, Berkshire Hathaway and Buffet.  All that means the Dam Deal – under which PacifiCorp’s customers and taxpayers will foot the total bill for dam removal – has a good chance of making it through Congress one way or another.

Klamath Irrigators got what they wanted in the Water Deal. If the deal is memorialized in federal legislation these irrigators will be first in line for Klamath Water ahead of at risk salmon and other private irrigators  

Whether the Water Deal remains part of the final legislative package is another story. Due to its cost and the controversy it has generated, prospects for it to be enacted as negotiated appear slim. The Bureau of Reclamation and the Irrigation Elite they serve will have a hard time holding on to the first-in-line-for-Klamath-water provisions they negotiated; the damage to non-federal irrigators is just too great. 

Even if some Water Deal provisions manage to remain in final Klamath dam removal legislation, however, there is a good chance Congress will make changes to those provisions. Those who want to fix the Water Deal, not kill it, have a good chance for success if they are organized, determined and can find champions in Congress for those changes.  For example, a better guarantee of water for the Klamath Refuges and the basin-wide flow study recommended by the National Research Council in order to properly set in-river flows could become part of what emerges from Congress.

Lower Klamath and Tule Lake NWRs - and the 80% of Pacific Flyway birds which rely upon them - are dependent on the Bureau of Reclamation and the Irrigation Elite for water supply

The dewatered Scott River near Fort Jones on October 2, 2009. A basin-wide flow assessment would encompass major tributaries including the Scott, Shasta and Trinity.

KlamBlog previously pointed out that the federal land and resource management agencies– the Bureaus of Reclamation and Land Management and the Forest , National Marine and National Wildlife Services - collectively known these days as the “Federal Family” - are the real architects of the Klamath Deals. Key federal bureaucrats recognized years ago that the likelihood of dam removal (money loosing dams can’t survive relicensing) presented an opportunity to get back control of Klamath River Basin water management from the courts acting on behalf of salmon, fishermen and the federal tribes. 

The bureaucrats decided then to try to hitch a Water Deal which suited them to what would likely be a popular dam removal deal. Without changes, legislation implementing the Water Deal will provide federal bureaucrats with what they most desire – the authority to manage water, land and resources professionally - that is, undemocratically - and out of the public eye. Whether Congress will go along with undemocratic Water Deal governance provisions, however, is not clear.

Since the opening of the American West, federal bureaucrats have competed with locals for control of land, water and resources

Historically, these federal agencies – the Bureaus of Reclamation and Land Management and the Forest, National Marine and National Wildlife Services - have competed with westerners for control of water, land and resource management. As KlamBlog has pointed out before, The Water Deal provides for renewed federal dominance in Klamath water management. Under it decisions on how water is managed would be made by federal and tribal bureaucrats meeting behind closed doors.

The alternative to federal back room management is the democratic basin-governance model which was originally championed by scientist and western explorer John Wesley Powell.  We see the democratic model in operation today in traditional irrigation districts and in those river basins which have empowered and effective, all-party river commissions.  The closest thing we have seen to that model proposed so far in the Klamath River Basin is Siskiyou County’s call for an open process to develop a basin-wide restoration plan. 

Behind the Scenes

In advance of the coming legislative battle those who are promoting the Deals, those who oppose them, and those who want to fix what they consider fatal flaws are all active.

The Two Rivers Tribune recently reported that draft legislation to implement the Dam and Water Deals is “circulating in secret".  The Hoopa Tribe is upset that the feds have not shared the draft bill with them and all other federal tribes which will be affected by it. Only those tribes and private parties which signed the Deals have been invited to review and comment on the draft; the Hoopa and Quartz Valley Tribes and the Resighini Rancheria have been denied the opportunity to review and comment.

Oregon Senator Jeff Merkley and California Congressman Mike Thompson have reportedly agreed to sponsor the legislation.  Key environmental constituents who have supported Mike Thompson in the past, have asked him to fix what they consider fatal flaws in the Deals in any legislation he sponsors. There is no indication, however, that Thompson is consulting with these supporters.    

On the opposition side, Siskiyou County’s supervisors are in the midst of a major effort to get the federal agencies to “consult” with them about Klamath River and all other land and resource management issues. Four deluded supervisors out of five apparently believe that federal managers must defer to their local radical right, anti-tribe sentiment. So far the county supervisors get lip service from the Forest Service which dutifully appears when called but the National Marine Fisheries Service recently refused a similar demand for them to appear.

Siskiyou County’s radical right supervisors appear convinced that Siskiyou voters will back their efforts to get the feds to defer to them on water, land and resource management. In the midst of cuts to most county services, they recently voted to pay lawyer Fred Kelly Grant $250 per hour to act as their “coordination counsel”.

A criminal lawyer by profession, in recent years Grant has worked for the property rights group Stewards of the Range which has now become American Stewards of Liberty. His current effort is promoted by an organization calling itself Trademark America. For an introduction to the network of interconnected property rights organizations see this link.

While Grant forcefully presents legal arguments for a federal coordination requirement, he does not site nor has he apparently been involved with a single court case upholding a requirement that federal officials defer to county land and resource management plans and policies. Instead, Grant and the American Stewards of Liberty of which he is a part appear to be attempting to ride the Tea Party wave into a new era of county-level political resistance to state and federal authority. 

Meanwhile those who see much good in the Klamath Deals but also fatal flaws are organizing to secure the changes they say are needed.  For these folks the devil is in critical details which they would like to see all affected citizens understand.  The Redwood Chapter Sierra Club, the Environmental Protection Information Center, Northcoast Environmental Center and Redwood Chapter of the Audubon Society are sponsoring a teach-in on the Secretarial Determination Process, the Draft EIS/EIR to inform that decision and the issues which will arise when Klamath legislation is introduced in Congress.  The teach-in will take place on Wednesday October 19th at the Warfinger Building in Eureka. Other educational efforts are also being planned.

Informed Consent is a process which Indigenous Karuk-Yurok leader Chris Peters has stressed is missing from Dam and Water Deal processes.  According to Peters - who is a member of the Yurok Tribe - when Indigenous water and other rights are involved, all tribal members should be fully informed and a majority of members should give their consent before the tribal governing body signs on. Oregon’s Klamath Tribes is the only tribal government to yet hold a referendum on the Deals. That tribe’s members voted to support the Deals which would provide them with the means to regain a land and resource base.  

Into the light

KlamBlog has pointed out many times how and why secret and back room dealing has come to dominate Klamath River water, land, resource and restoration management and decision making. We have not hidden the fact that we see that dominance as morally, socially and environmentally wrong. Undemocratic, backroom management by any collection of entities is not in the interest of the Klamath River or Klamath Salmon.

KlamBlog is a strong advocate for open, democratic and science-driven water management and restoration because it is the People’s right to see how public water and public resources are being managed. While back room dealing will no doubt continue, once the Draft EIS/EIR is released and Klamath Legislation is introduced into Congress essential decisions will have to be made in public.
Finally, all those with an interest in the Klamath River will have an opportunity to understand what is at stake and the trade-offs their leaders have accepted.  All citizens who have a stake will have the opportunity to weigh in as is their right; the Klamath is – after all is said and done – a public river.

As public deliberations replace back room shenanigans KlamBlog will be there enthusiastically pushing for full disclosure, continuing to publicize what others seek to keep hidden and thereby seeking to empower citizens to get involved and to make a difference.

It is likely to be a wild ride.
         * The unprecedented nature of the Dam and Water Deals may be the combination of a tribal water rights settlement (Klamath Tribes) with a dam removal deal. Tribal water rights settlements have been going on in the West since the 80s; for the most part, tribes have traded vast unperfected water rights for money and other considerations. History will not look kindly on this second great swindle of America’s Indigenous peoples.  The proposed termination of the federal trust responsibility with respect to the rights of all six of the Basin’s federally recognized tribes – whether or not they agree to that termination – also appears to be unprecedented.  

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