Another Klamath Dam mystery 121122

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Bob Kaster: Another dam mystery
Bob Kaster is a long-time Yreka resident and retired Siskiyou County Superior Court judge

Copy of article appears in Siskiyou Daily News 12/11/22

"...the removal of the (Klamath) dams and the resulting sediment release (20 million cubic yards) will have an adverse effect on the 'Wild and Scenic River values,' and that FERC’s own Environment Impact Statement expressly acknowledges 763 times that it will do so. He asks the court to declare, among other things, that the proposed expenditure of $250 million of taxpayer funds toward dam destruction violates the provisions of the Bond Act itself and is therefore illegal..."

Observations From the Octogenarian

Today I want to write about some real-life mysteries, very important to us in Siskiyou County. These have to do with the proposed demolition of four dams along the Klamath River, which now appears to be a fait accompli , although to me every bit as mindless as my mindless thrillers. Legitimate and important questions have been raised that haven’t been answered or adequately addressed by PacifiCorp, the Klamath River Renewal Corporation, the governors of the states of Oregon and California, or the Secretary of the US Department of the Interior. And they are not adequately addressed in the Environmental Impact Statement recently approved by the Federal Energy Regulatory Commission (FERC). All appear to be hell-bent to get this done, regardless of the potentially disastrous consequences. A political bulldozer.

There is comfort in knowing I’m not the only one who has unanswered questions. U.S. Representatives Cliff Bentz and Doug LaMalfa, the duly elected members of Congress representing the districts in Oregon and California where the dams are situated have formally raised these issues as a part of FERC’s official proceedings.

Back on June 16, 2022, Bentz and LaMalfa, responding to FERC’s public input process, submitted a letter raising many important issues which had not been adequately addressed in the then draft Environmental Impact Statement or other analyses presented by dam removal advocates. The letter pointed to undisclosed and unknown federal, state and local costs and other liabilities associated with dam removal. (Here is the link to that letter: 20220616 Bentz LaMalfa Klamath Dams.pdf - Google Drive.) They raised many issues, including these two: (1) Whether the Oregon and California governors’ commitments for the states to cover cost overruns and other damage caused by dam deconstruction have any legal validity. (They were executive orders without the backing of either state’s legislative branch.) and (2) Who will fund PacifiCorp’s share of cost overruns and damages, ratepayers or shareholders?

Their letter was essentially ignored by everyone to whom it was addressed. It would seem that the political steamroller was far enough along that the dam-removal advocates didn’t feel it necessary to respond in any significant manner to the inquiries of two members of Congress. Bentz and LaMalfa followed up their initial submittal with a follow-up request four months later, on Oct. 21, 2022, and there still has been no meaningful response.

One of the biggest mysteries to me in this whodunnit is how it can be that the ultimate decision now rests with five unelected members of the Federal Energy Regulatory Commission, instead of the United States Congress. I’ve written articles in the past about the fraudulent and expensive survey promulgated by the U.S. Department of the Interior in 2011 to try to persuade Congress to take action authorizing dam removal. But, oops, Congress declined, so the dam removal advocates decided well maybe it wasn’t Congress’ job after all, let’s find someone who will do it, someone more manageable, like maybe five unelected commissioners.

The question this raises has nagged at me for years. How can you just do an end-run around Congress? Who’s actually in charge here? And if you don’t get the answer you want from the first place you go, then find someone who will go along.

The ultimate decision should be up to Congress, not FERC, but so far various legal theories in support of this idea have fallen on deaf ears. One such theory has recently been advanced in a new lawsuit, filed in the Siskiyou County Superior Court: Anthony Intiso v. The State of California Natural Resources Agency and Wade Crawfoot, its secretary. So far, there is no lawyer involved in this case.

Plaintiff Anthony Intiso is a local Yreka resident who is on the governing board of the Siskiyou County Water Users Association and has been active in politics for many years. He’s had some legal education but is not a lawyer. There is no doubt, however, that once service of process is complete, the State of California will lawyer-up and an army of attorneys from the State Attorney General’s office will flood the court with an array of motions, including one to move the case to a different court.

I won’t try to predict the outcome of Mr. Intiso’s venture but have to give him credit for his effort to get a court determination of a narrow, specific, and important issue; one that, to my knowledge has not been judicially determined. A brief and oversimplistic summary of Mr. Intiso’s position is this: The Klamath River is designated as a 'Wild and Scenic River' under both state and federal law. The voter-approved California Bond Act that purportedly authorizes the state to spend $250 million of California taxpayer money for dam deconstruction was the 'Water Quality, Supply, and Infrastructure Improvement Act Of 2014' ('the Bond Act'). By its own terms, the Bond Act says it is not intended to affect California’s Wild and Scenic Rivers.

The specific language of the Bond Act is this: 'Nothing in this division shall be construed to affect the California Wild and Scenic Rivers Act … or the federal Wild and Scenic Rivers Act … and funds authorized pursuant to this division shall not be available for any project that could have an adverse effect on the values upon which a wild and scenic river or any other river is afforded protections pursuant to the California Wild and Scenic Rivers Act or the federal Wild and Scenic Rivers Act.'

Mr. Intiso quite reasonably argues that the removal of the dams and the resulting sediment release will have an adverse effect on the 'Wild and Scenic River values,' and that FERC’s own Environment Impact Statement expressly acknowledges 763 times that it will do so. He asks the court to declare, among other things, that the proposed expenditure of $250 million of taxpayer funds toward dam destruction violates the provisions of the Bond Act itself and is therefore illegal.

As I said above, I’m not going to try to predict the final outcome of this one. I will predict, however, that the state’s lawyers will file every conceivable motion on procedural grounds to avoid a judicial determination on the merits of this important and specific legal issue. How can you seriously argue that taking down dams and allowing decades worth of accumulated sediment to run down the Klamath River doesn’t 'have an adverse effect on the Wild and Scenic River values?'

FERC treats the issue as 'moot.' Really? If Mr. Intiso’s theory is correct, then it puts the dam-removal decision back in the hands of Congress, where it should have been all along. Unfortunately, I fear that the State Attorney General’s Office will be successful in deflecting, on procedural grounds, a court determination of this specific and important issue.

Bob Kaster is a long-time Yreka resident and retired Siskiyou County Superior Court judge. In retirement, he has taken up creative and journalistic writing, including novels, short stories and essays. For six years, he has written local newspaper columns under the byline, The Septuagenarian Speaks. Having turned 80, that doesn’t seem applicable anymore, so hereafter (for at least ten years or until he can come up with something better) it will be Observations From the Octogenarian.

If you have any suggestions, or simply want to comment, email Bob at [email protected]. To see some of his other writings, check out his website https://bobkaster.com

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