Monday, October 31, 2011

Tales from two meetings

The team of federal and state officials charged with hearing testimony on the Klamath Facilities Removal Draft environmental report wrapped up their assignment last Thursday evening in Klamath, California near the mouth of the River. The Klamath Public Hearing followed others held in Klamath Falls, Yreka, Orleans and Arcata and upon a teach-in on the environmental report in Eureka sponsored by the North Group Redwood Chapter Sierra Club and other organizations.  Links to media reports on hearings in Klamath Falls, Yreka and Arcata are included at the end of this post.

 Members of the Hoopa Tribe express their sentiment

The Klamath Public Hearing

Located near the mouth of the Klamath River, Klamath is an diverse community and that was reflected at the hearing. The event was held at the Yurok Tribe’s administrative facility which is right across the River from another of the six federally-recognized tribes located within the Klamath River Basin. The members of the Resighini Rancheria are all Yurok Indians and The Rancheria's government predates the Yurok Tribal Government. Officials and members of both tribes – the Yurok Tribe and the Resighini Rancheria – dominated the hearing.

To give folks a sense of the hearing we present below quotes and paraphrases from those testifying at the Klamath hearing. Here’s what individuals and those representing organizations had to say about the environmental report and about the Dam and Water Deals – the KHSA and KBRA – which the report claims to assess.

Thomas O’Rourke, Chairman, Yurok Tribe:
  •   Native people have been caretakers of the River for uncounted generations.
  •   Water Quality is the River’s most significant problem.
  •   Working together we can be successful at restoring the River.

David Gensaw, Council Member, Yurok Tribe:
  •    He reminded folks that Klamath River Indigenous Natives had to fight the attempted termination of their fishing rights. In the 1970s those fishing traditionally faced arrests and beatings.
  •    We need the dams out to restore the salmon. We’ll fight for that and won’t settle for less.
  •    Our salmon refugia have been destroyed by irresponsible logging and irrigation/farming.

Sunshine Watkins, Treasurer, Resighini Rancheria:
  •    We were excluded from Klamath negotiations; if the KBRA is endorsed by Congress our rights will be terminated. Under the KBRA we will be on the outside for 50 years.
  •    The dams should come out before the 2020 date proposed in the KHSA.
  •    The best way to get the dams out is to return to the FERC process; the State of California 401 Clean Water Act certification process will result in timely dam removal.
  •    We need Ecological Restoration which the KBRA does not provide.

Ray Mattz:
  •    When he was young in the days of massive logging the eddies in the river were filled with bark.
  •    The Candlefish – a mainstay of traditional Yurok diet – are gone. The Trinity Dam was built and within 7 years the Candlefish were gone.  
  •    “We should be proud that (unlike other rivers) we still have wild fish."

Sammy Gensaw , member, Yurok Tribe:
  •    “I come here to represent the youth of the reservation.”
  •    We’re living in a food dessert; we need a thriving river in order to maintain our culture.
  •    We’re part of the ecosystem.

Mike Belchik, fish biologist in the employ of the Yurok Tribe:
  •    Supports the KBRA and KHSA which will provide salmon with access to refugia above the dams that have stable sources of cold groundwater.
  •    He believes dam removal and the KBRA are the keys to restoring Spring Chinook Salmon.

Josh Norris, member of the Yurok Tribe:
  • “I’ll be here for the long haul.”
Josh Norris: "I'll be here for the long haul."

Georgianna Myers:
  • “Our river is sick and we feel its pain.”

Josh Strange, fisheries biologist who has worked for the Yurok Tribe:
  •    Risk associated with the ‘no action’ alternative are not properly appreciated or addressed in the environmental document.
  •    Klamath River fish disease problems cannot be fixed if the dams are not removed.
  •    Global warming is a new threat that has not been assessed.

Patrick Higgins, fish biologist in the employ of Resighini Rancheria:
  •    The environmental document does not analyze the impacts of the KBRA; this sort of deferral of environmental analysis violates NEPA and CEQA.
  •    The environmental document lacks an ecologically based alternative; ecological restoration is the only way to restore the River.
  •    Because the KBRA will not employ ecological restoration in the Upper Basin terrible water quality due to agricultural pollution will continue. The fish diseases will simply migrate upstream once the dams are removed.
  •    The environmental document fails to address pesticide use in the Upper Basin. Commercial agriculture on the Tule Lake and Lower Klamath National Wildlife Refuges has the largest rate of pesticide use in all of Siskiyou County.

James Dunlap, Yurok Indian and manager of
  •    As a Yurok I have an innate distrust of the federal government.
  •    Waiving of tribal rights in any manner is not acceptable. We don’t endorse any agreement that  gives away or waives any of our rights.

Merk Oliver, member, Yurok Tribe
  • The dams are no good for anyone; they are poisoning the fish and the people.

Felice Pace, KlamBlog
  •    The issue is not dam removal – the dams will come down because if relicensed they would lose money. It is not in the interest of the owner – PacifiCorp – to keep operating them therefore – one way or another – they will come out.
  •    What remains to be decided is: 1. when the dams will come down, 2. who will pay for removal, and 3. what other provisions for good or ill will catch a ride on the dam removal train.
  •    The environmental document makes numerous unsubstantiated claims not backed up by data or analysis. For example, the environmental document claims the KBRA will achieve water pollution clean-up goals more quickly than if it was not implemented. Yet there is no analysis in the environmental document or elsewhere to back up that claim.
  •    The proposed alternative would relieve PacifiCorp of responsibility for toxic legacies which may be lurking around100 year old powerhouses. The taxpayers should not be saddled with cleaning up PacifiCorp’s toxic legacies.

Robert Jackson, Yurok
  •    We need to focus on having water for the fish; we need water too.
  •    It is disgusting how they waste water up there (in the Upper Klamath River Basin).
  •    We need to manage the nutrients (coming from agriculture)
  •    In no way should we relinquish any of our water rights.

Klamath Teach-In

On October 19th a group of North Coast environmental organizations that strongly support dam removal but do not support or have reservations about aspects of the KBRA Water Deal, presented a teach-in on the draft environmental document intended to inform the Secretary of Interior’s decision on whether or not to implement the Klamath Dam and Water Deals in Eureka.

The teach-in was well covered in the press; a video of the event is available for viewing on Access Humboldt.

One member of the audience challenged the presentations. Peter Pennycamp said he had come to hear all sides of the issues but was disappointed that promoters of the Dam and Water Deals were not on the agenda. One of the presenters – fisheries biologist Pat Higgins – pointed out to Peter that the government is making the case for the Dam and Water Deals in 6 sessions around the region and that the teach-in is intended to provide a forum for those whose views are not being promoted by federal and state government officials and agencies.

Higgins represents the Resighini Rancheria - one of the three federal tribes located in the Basin which were excluded from negotiations that resulted in the Dam and Water Deals. He offered to debate promoters of the Deals anytime and anywhere.

This small controversy mirrors a debate going on in society generally: Are media outlets obligated to provide “balance” by providing all sides of an issue with equal time? Alternatively, is there a place for advocacy journalism, i.e. journalism which comes from a certain position other than feigned  “neutrality” and/or which seeks to balance voices in the public arena by giving voice to those interests and individuals who are marginalized or not considered at all by major media outlets?

One of the promoters of the Dam and Water Deals – Craig Tucker who works for the Karuk Tribe – was very active at the teach-in even though he was not a presenter. Tucker repeatedly interrupted and challenged both the presenters and those members of the public commenting after the presentations. Tucker has been known to “lose his cool” before; on this particular night he was in rare form, suggesting among other things that everything that had been presented was wrong or misinformed.

Tucker also took credit personally and organizationally for getting PacifiCorp to agree to the Dam Deal. He ignored the efforts of many tribal biologists and environmental activists who painstakingly built the case for dam removal for years before Tucker came to the basin. In KlamBlog’s view it is those biologists and activists who sealed the fate of the dams by getting an administrative law judge to order that fish ladders must be installed if the dams were to be relicensed. The cost of those fish ladders alone – not to mention the cost of mitigating the dams’ water quality violations – is what really doomed the dams.

In spite of the irascible Tucker, the presenters and audience for the most part remained calm and maintained an atmosphere of respect for the opinions of others.

Once it was clear that the relicensed dams would lose money annually, their fate was sealed. Dam owner PacifiCorp has since that time negotiated to get the best deal for shareholders. The KHSA or Dam Deal represents their complete success. If the Dam Deal is endorsed by Congress, PacifiCorp shareholders will be able to walk away from the Klamath Hydroelectric Project which they own and will be absolved from all liability not just for dam removal but also for all toxic legacies which may be lurking around the company’s 100 year old powerhouses.

Here are links to media coverage that reported what people said at Klamath Facilities Removal Draft EIS/EIR hearings:
The Two Rivers Tribune had excellent coverage of several of the hearings as well but at the time of this posting they were not available on the TRT web site.

Klamath Justice Coalition Pro Dam Removal protest outside the Yreka Hearing
(photo courtesy of the Two Rivers Tribune) 


Glen Spain said...

Dear KlamBlog...

Thanks for the firsthand accounts.
Three comments:

(1) The "teach in" in Arcata should make no pretense of having been neutral. If it had been a neutral fact-finding group at least one of the Klamath Settlement PROPONENTS would have been invited to speak. Opponents are entitled to their opinions, but it is disingenuous to pretend to be running a neutral forum that simply was not, by intent.

(2) The federal hearing officers were not making a pitch for the KHSA or KBRA. In fact, they could not answer any questions. Their sole job was to take public comments, not be advocates.

(3) The Klamath Bill contains the following provision:

"Sec. 106(l) -- Nothing in this title or the Restoration Agreement [KBRA] amends, alters, or limits the authority of the federally recognized tribes of the Klamath Basin, other than Party Tribes, to exercise any water rights the tribes hold or may be determined to hold."

None of the current tribal rights of the Hoopa Tribe, Resighini Rancheria or any other federally recognized tribe not a Party to the KBRA will be affected by the KBRA in any way.

There is a great difference between fear and fact.

-- Glen Spain, for PCFFA

Felice Pace said...

Dear Glen Spain,

1. The teach-in was held in Eureka - not Arcata. Too bad you could not attend. More importantly, the teach-in did not make any "pretense of having been neutral" as you allege nor did the post suggest that. Instead the post reports one of the presenters as pointing out that the intent was not neutrality but rather to provide balance by giving a voice to views which have not been heard and are not represented in one of the EIS/EIR alternatives.

2. The post did not say that the federal hearing officers were "making a pitch for the KHSA or KBRA" as you allege. This has me wondering: did you actually read the post?

3. You are correct that neither the KBRA, the KHSA nor the proposed legislation to endorse the deals contains a waiver of tribal water rights. What these deals and the proposed legislation do, however, is waive the right of the six Klamath River Basin tribes to have their trustee - the federal government - pursue, protect and support those water rights.

As you know, no Klamath River Basin tribes possesses the resources to assert their water rights. That makes them dependent on the federal trustee to assert and protect those rights. You Glen know very well that paper water rights mean nothing if one does not have the ability to assert those rights and fight the inevitable court battles.

Three of the Basin's six tribes have apparently agreed to waive the trustee's duty to protect and perfect their water rights; 3 did not. The Deals and the proposed legislation would waive the trustee's duties even if the tribe does not agree. That is known as "termination" and it is opposed by the #1 national tribal organization...the National Congress of American Indians.

The proposed legislation states:
(1) IN GENERAL.—In return for the
commitments of the Klamath Project Water Users relating to the water rights and water rights claims of
federally recognized tribes of the Klamath Basin and of the United States as trustee for such tribes and other benefits covered by the Restoration Agreement and this title, the United States, as trustee on behalf of federally recognized tribes of the Klamath may make the commitments provided
in the Restoration Agreement, including the assurances described in section 15 of the Restoration Agreement."

Section 15 of the KBRA specifies termination of the trustees duty to assert and protect the tribes water rights. For the three tribes that do not agree, this IS termination. The Deals and the proposed legislation do not conform to international standards which require INFORMED CONSENT when Indigenous rights are terminated.

There is indeed "a great difference between fear and fact." There is also no honor in intentional obfuscation.

Glen Spain said...

Dear Felice...

What you are suggesting is that the US -- which is Trustee for ALL the Klamath Basin Tribes -- should sue three Tribes on behalf of three other Tribes over the KBRA. This it cannot legally do. That would be a Trustee direct conflict of interest. But this is far from any waiver of such rights.

Both the Yurok and Hoopa Tribe asserted their own water rights in the 2002 PCFFA vs. BOR case, and did so very well. They both have very capable legal counsel, including in-house counsel. To imply that these Tribes could never protect their own water rights without the US coming to their rescue to sue on their behalf sells them very short, and is a disservice to their very capable Tribal governments, in my view.

A termination must be of a right. No Tribal rights of non-Party Tribes will be affected by the KBRA, and any waivers of Party Tribes are purely voluntary and their own decision, as well as in return for a great deal of benefit under the KBRA to help the fish. Thus there is no involuntary termination of any sort.

-- Glen Spain, for PCFFA

Felice Pace said...


You conveniently fail to mention the Resighini Rancheria and the QVIR which are small tribes without much legal capacity. But even the Yurok Tribe and Hoopa Valley Tribe do not have the resources to pursue water rights litigation which - as you have pointed out to me and others many times - requires specialty lawyers and typically/often takes 30 years or more!

And Glen, you know very well that the case to which you refer was NOT a water rights case but an ESA case.

So why are you trying to obfuscate?

You are quite consistent in making the same type of argument over and over; you argue that concern about this or that provision of the KBRA or KHSA is not really significant.

That argument begs the question of why - if these provisions are so insignificant - they have been included in the KBRA and why lawyers for the irrigators and Trout Unlimited had to be employed for weeks and months to draft the legal language.

I am afraid to have to inform you Glen that ALL behavior has a motivation; your argument to the contrary makes no sense.

More important than all this, however, is the principle of "Informed Consent" which Indigenous Peoples have fought for at the UN and everywhere else. The principle holds that before ANY Indigenous rights are waived those Indigenous people whose rights are being waived must be fully informed of the implications and must clearly give their consent.

The Klamath Tribes are the only tribe which has had a referendum on the Deals; they are the only tribe which has satisfied the standard.

Informed Consent is one of the prime measures used to determine whether an action is "sustainable" - do you believe we should be acting sustainable?