As set forth above, NMFS has since even before it listed Rogue River coho entertained preconceived notions about Savage Rapids Dam and the Grants Pass Irrigation District. It rushed, before gathering the facts, to a judgment that is contrary to law. Far less egregious circumstances than these have been held to deprive citizens of due process of law, as "an administrative hearing 'must be attended, not only with every element of fairness but with the very appearance of complete fairness'". Cinderella Career and Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583, 591(D.C. Cir. 1970) (quoting Amos Treat & Co. v. SEC, 306 F.2d 260, 267 (1962).

In the Cinderella case, the D.C. Court of Appeals vacated the Commission's order because a Commissioner gave a speech in which he challenged the ethics of newspapers accepting ads that offer "becoming an airline's hostess by attending a charm school". Id. at 590. The facts above suggest a bias and prejudice against the Dam and the District over even more overpowering magnitude, one shared by every single "dambuster" involved.

NMFS' regulations implementing  10, and perhaps  10 itself, are also unconstitutionally vague. The Supreme Court has explained that

In addition, "[t]he requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values . . . and permits meaningful judicial review". Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984).

Finally, NMFS' enforcement proceedings plainly violate the Fifth Amendment of the Constitution: "Nor shall private property be taken for public use without just compensation." The Declarations before this Court establish that the property of the District's patrons, zoned exclusively for farming, is rendered valueless without irrigation water. It is settled law that the water rights of the District and its patrons are vested property rights protected from unconstitutional takings, even if a permit is required from the United States to actually remove the water from the river. See Int'l Paper Co. v. United States, 282 U.S. 399 (1931).

NMFS has not even offered to compensate the District's patrons with just compensation. (Response to RFA No. 17) The farmers themselves recognize that "the government will be taking all of the value of the land from me without compensation". (Hart Aff. at 2) Federal courts have not hesitated to set aside agency action as "contrary to constitutional right" under far less egregious circumstances than these. See, e.g., Fallini v. Hodel, 725 F. Supp. 1113, 1124 (D. Nev. 1989) (refusal to allow cattle grazers to limit water access for wild horses is unconstitutional "taking").

NMFS' assertions of statutory authority to require "compensation for unavoidable take", made in the course of Mr. Smith's "preaching" to the District (DX46, at 1), also threaten a Fifth Amendment violation. (See generally Smith Tr. 100-01; compare Morris Tr. 39 and 28.) NMFS proposes not only to take property without compensation, but also to require compensation to be paid to the United States for use of the District's own property. Under NMFS' statutory interpretation, once fish in any Pacific Northwest river are listed under the ESA, farmers who withdraw water from any such rivers must pay amounts set by NMFS for purposes established by NMFS.

It is a longstanding principle of statutory construction that statutes should be construed to avoid constitutional infirmities whenever possible. NMFS' has proposed statutory constructions that run rampant over the constitutional rights of the District and its patrons. It defies credulity to suggest that Congress ever intended NMFS' permitting authority to be used in this fashion.

The Federal judiciary has not hesitated to enjoin what the District regards as far less serious threats to Constitutional rights. See, e.g., Central Avenue Enterprises, Inc. v. City of Las Cruces, 845 F. Supp. 1499, 1503-05 (D.N.M. 1994) (enjoining enforcement of obscenity ordinance); cf. Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994) (ordinance governing assault rifles unconstitutionally vague); Marks v. City Council of Chesapeake, Virginia, 723 F. Supp. 1155 (E.D. Va. 1988) (denial of conditional use permit for fortune telling parlor held unconstitutional). All that the District asks is that its water rights and the rights of its patrons to water and grow their crops be afforded the same protection as pornographers whose "freedom of expression"49 is chilled by obscenity regulation, or the rights of gun dealers.

The District understands that it is requesting extraordinary relief in asking this Court to interfere with the administrative agency charged by Congress to make these incidental take decisions. It may be possible to formulate alternative procedures to resolve this situation, and the District believes that the Court might be interested in the steps another District Court took in less egregious circumstances than these. In Chemical Waste Management, Inc. v. EPA, 673 F. Supp. 1043 (D. Kansas), the District Court found that plaintiffs had established every element for entry of a preliminary injunction in that EPA's policy was "one of the most confusing and haphazard directives that this Court has ever seen" (id. at 1056), that plaintiffs were likely to prevail on their constitutional challenge to the rule (id. at 1058), and that plaintiffs would suffer irreparable injury from EPA's refusal to allow a facility to accept hazardous waste (id. at 1057). The Court therefore required the parties to negotiate in good faith under the explicit threat of an injunction (id. at 1060), and negotiate in good faith a Consent Decree that would resolve the ongoing disputes. Given NMFS' extraordinary "dambusting" prejudices, the District would prefer to bargain with a temporary restraining order in place, so as to guarantee its right to deliver water to its patrons, but believes that this Court might usefully enter an order requiring negotiations.


Since 1921, the people of Grants Pass have sacrificed a tiny fraction of Rogue River coho salmon to build their ecosystem. Their conduct does not threaten the legitimate interests of the United States of America. For the foregoing reasons, this Court should not exercise its equitable discretion to grant the extraordinary remedy of a temporary injunction in favor of the United States, and should instead enter a temporary restraining order enjoining enforcement of the "take" prohibitions to allow the District to deliver water to its patrons pending further proceedings.

Dated: May 12, 1998.

49 One could construe NMFS' complaints about the District's lawsuit against the State of Oregon (2d Cramer Decl.  16) as a threat to the First Amendment right to petition the government; so far the United States has successfully barred any discovery of the events in March that might flesh out this claim.

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