News from the Front #15:

Environmentalist Litigation Continues Attacks on Water Rights

As February draws to a close, with many citizens' attention diverted by the Potemkin village of public participation on the decision to remove dams, the environmentalists scored a tactical victory and launched a new assault on Western water rights.

The new assault was launched on February 17, 2000, when the usual alliance of environmentalists and commercial harvest interests (in this case, Trout Unlimited, WaterWatch of Oregon, Northwest Environmental Defense Center, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Oregon Natural Resources Council, and Sierra Club) filed yet another suit seeking more water for salmon.  The suit alleges that the National Marine Fisheries Service, the United States Bureau of Reclamation and the United States Army Corps of Engineers are violating the Endangered Species Act.

The complaint alleges what it calls "a simple truth:   low flows decrease salmon survival".  Of course, given the scientific data that the National Marine Fisheries Service is finally beginning to assemble, this claim is beginning to look more like "a complicated lie" than "a simple truth".  Except at very low or very high flows (both of which are bad for salmon), salmon survival has almost nothing to do with flow.

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Capitalizing on the fact that NMFS sets flow targets that can never be achieved, the environmentalist and fishing interests complain that "actual flows have consistently failed to meet these flow targets".  Relying upon data prepared by the Idaho Department of Water Resources, they claim that at least 2.2 million more acre feet of water is required from Idaho for summer releases into the Snake River, and identify a lengthy list of Bureau projects in Idaho and elsewhere that the Bureau could operate to increase flows.  In a legal contest between irrigators holding water rights and contractual rights to delivery from the Bureau, and the Endangered Species Act, I wouldn't look for the courts to respect the rights of the irrigators.

Some speculate that the environmentalists and fishing interests have only brought this suit to bring further pressure on irrigation interests, particularly Idaho interests, to capitulate to dam removal.  Perhaps they are even telling Idaho interests, privately, that they will drop the suit in exchange for such capitulation.  But Idahoans would be fools to go for such a deal, because environmentalists always want more, and even if the dams were to come out, they would be back for the water later.

The alliance's tactical victory came in the case of American Rivers v. Washington State Department of Ecology, No. 99-2-480-6 (Thurston County Superior Court), a lawsuit to set aside Ecology's existing rule on water metering, and issue a new rule that requires "metering or measurement by other approved methods as a condition for:  (1) all new surface and groundwater permits and rights; and (2) all existing surface and groundwater rights and claims which either divert from waters in which salmonid stock status is depressed or critical, as determined by the Department of Fish and Wildlife, or which divert in excess of one cfs [cubic foot per second]".  The alliance is relying upon House Bill 1309, passed in 1993, which became effective on August 5, 1993 (now codified as RCW 90.03.360). 

My superficial reading of the statute suggests that the Legislature made a mess of things through sloppy drafting, as usual, with respect to the critical question of whether groundwater was covered or not.  If legal reasoning still prevailed in the courts, it would be clear from the overall design of the statute that groundwater was to be treated differently than surface diversions.   But the only way to write laws now so as to avoid pro-environmentalist misinterpretation is to make them extraordinarily explicit.

On February 14th, the Judge issued an oral ruling in favor of the environmentalists and fishing interests, declaring in somewhat apocalyptic terms that metering "is a necessary step to bring us out of the dark and into the light".  From the perspective of the Judge, the State had to act to protect its "most precious resource" from the citizens.  Thus the Judge set aside Ecology's existing rule, and ordered it to prepare a new rule that applies to existing groundwater rights.  The case will continue, as the alliance is also   attempting to get enforcement actions for metering prioritized over Ecology's entire existing compliance workload (another pernicious feature of the statute); further hearings are expected.   As the litigation grinds to its likely conclusion, Washingtonians may look forward to litigation-driven demands that they spend amounts ranging from hundreds to thousands of dollars to install metering and measuring devices.  Of course, there is some chance that the decision could be reversed on appeal. 

One reason things go wrong in these kinds of lawsuit (other than the laws and the judges, of course), is that that there is often no one in the courtroom willing to tell the truth about water and salmon.  The environmentalist/harvesters have as an article of faith that water withdrawals are killing salmon everywhere, and it is politically-incorrect for the government lawyers to dispute them.   The judge isn't disposed to raise questions not raised by the parties either, or worse, may share the unreasoning faith of the environmentalists that water use is always bad.  The government lawyers wind up resorting to procedural defenses, often being required for political reasons to withhold their most potent arguments.  And more and more judicial opinions begin to recite as fact the idea that irrigators are killing the salmon.

If water interests were not asleep at the wheel, they would intervene in these lawsuits.  But in my experience, water (and other) interests take their lead from lobbyists who don't want scarce resources put into the legal arena.   So, as the environmentalist lawyer in the Thurston County case told me, they were able to have a "nice quiet hearing", unbothered by the squawking of those actually affected by the decision.  Maybe I'm just biased, since I'm a lawyer who has occasionally been hired to intervene in this kind of lawsuit.  Maybe you all shouldn't worry about these lawsuits.  After all, the Locke Adminstration and the Clinton/Gore Adminstration can be counted upon to defend citizens' rights, can't they?

James Buchal, February 25, 2000

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