Top DOJ Official Says "the Law" Requires Dam Removal

Lois Schiffer is the Assistant Attorney General of the Environment and Natural Resource Division in the United States Department of Justice in Washington, D.C.  She supervises a small army of lawyers that harasses Northwesterners pursuant to the Endangered Species Act and other environmental laws. She is advising the "Federal Caucus" on the legalities associated with the upcoming decision whether or not to take out the Snake River dams. In particular, the "Federal Caucus" seems to have narrowed its choices down to taking out dams, trivial changes in salmon harvest management, further research with "aggressive" incremental improvements, or some combination of these choices.

Ms. Schiffer recently told the assembled Masters of the Salmon Recovery Universe that the aggressive non-breaching option "would not fly" as a legal matter, and the dam-breaching option would be much more defensible. Ms. Schiffer apparently based her legal advice on opinions by United States District Court Judge Marsh, in which he has declared, among other things, that the hydropower system needed a "major overhaul".

One problem with relying on that decision is that the Justice Department threw the case to begin with. The question was whether dam operations would "jeopardize the continued existence of" Snake River salmon. The National Marine Fisheries Service insisted upon looking at all effects arising from dams, as if evaluating a decision to build new dams from scratch. But the Endangered Species Act is not retroactive, so that the question properly before the agencies concerned tiny effects arising from different choices for future dam operations. The Clinton Justice Department refused to make this argument (it routinely fails to make winning arguments in environmental cases), and told the Judge I was wrong when I made it. On that basis, after reading a handful of affidavits (no trial was ever held), Judge Marsh declared that 1993 agency decisionmaking concerning dam operations was unlawful.

I appealed Judge Marsh's decision to the United States Court of Appeals for the Ninth Circuit, fighting the Justice Department every step of the way. (One might think that the government would want to appeal a case it had lost.) The Ninth Circuit vacated Judge Marsh's judgment, so that under the ordinary rule of law, it has no force as precedent.

The next time the lawfulness of dam operations came before Judge Marsh (when environmentalists challenged the 1995 biological opinion on dam operations), Judge Marsh affirmed the agency decisions. Over and over again, the Ninth Circuit has affirmed that agencies have a wide latitude in decisions to comply with the Endangered Species Act, particularly in a context where ongoing actions are involved.

So when a high-ranking official in the Clinton Justice Department tells her clients that only dam removal will "fly" legally, those words don't have much to do with law. Ms. Schiffer may perceive the personal views of Judge Marsh correctly, but those views are not "law". Judge Marsh, to his credit, knows the difference.

The Clinton Justice Department knows the difference too, but it upholds political expediency, not the rule of law. It is politically expedient for the Clintonistas to invoke "law" for an irrational decision to breach dams, because people still respect the law (unlike the Clinton Administration). The Clintonistas are confident that the people and even their representatives will be stupid enough to accept that "the law" requires dam removal, as if "the law" could require Congress to pass new laws for fish. In a representative democracy, the will of the people motivates new laws, not the opinions of elites that "the law" requires more laws.

Salmon science and salmon law are both rotting corpses. I don't mean to pick upon Ms. Schiffer. She is but one in the clouds of flies feeding upon those corpses. But the flies are buzzing louder and louder. The Masters have organized public meetings over the next couple of months to build their case for dam removal, and the flies will swarm into those meetings to support it.

Only a small minority of Northwesterns will actually be affected by decisions to remove the Dams. Their words cannot overcome the buzzing. Their action can.  As Thoreau's famous 1849 essay, On Civil Disobedience, pointed out:  "A minority is powerless while it conforms to the majority; it is not even minority then; but it is irresistable when it clogs by its whole weight".   More recently, the WTO protestors in Seattle, misguided as some of their positions are, show that a vocal minority can derail the Masters' train. But they wouldn't have accomplished anything by dutifully waiting in line for a two-minute opportunity for public comment. More is required than that.

When the thousands of people who will lose their jobs, farms and other businesses take the time to sit down at the doors and blockade those public meetings, and protest their Masters' plans in every creative way, things will change. And if they don't care enough to do that, they and their way of life will become extinct long before any species of Northwest salmon.

It's not just the salmon. Read Charleton Heston's speech about why, whether they know it or not, Americans are in a war in which civil disobedience is the necessary response.  Can there be any doubt that bankrupting the elderly, whose land use might kill one or two of tens of thousands of salmon fry, while permitting others to harvest and sell the same fish for $1.50 a pound, is as unjust as any other policy that has gotten Americans into the streets before?

                    James Buchal, January 18, 2000

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