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News from the Front #25:
Enviros Seek Injunction Against Water Spreading to Blackmail Farmers into Supporting Dam Removal
On Friday, May 19th, Trout Unlimited and several other environmentalist and commercial fishing organizations filed a motion for a preliminary injunction to forbid the U.S. Bureau of Reclamation from delivering water used for "water spreading". The injunction would cover Bureau operations all over the Columbia River Basin. No hearing date has been set. Here are links to the memorandum they filed in support of that motion, in Microsoft Word and HTML (webpage).
A spokesman for the Earthjustice Legal Defense Fund told Associated Press the rationale for the lawsuit: “We hate to do it, but they (farmers) don’t want the dams to come out. Those farmers could stay in business if they help to take care of the salmon and take out the dams.” In other words, the enviros seek an injunction to cut off farmers' water so as to force capitulation to their political objectives.
If environmentalists were still subject to law, rather than being treated as some sort of priestly caste, they might well be subject to liability for the ancient tort called "abuse of process". It is ordinarily illegal to use the legal "process" of the courts, like an injunction, to achieve a collateral purpose. This is blackmail, plain and simple.
Good blackmailers require some weakness on the part of their intended victim, and here the weakness is found in the enormously complex web of laws, rules and contracts that govern irrigation throughout the Columbia River Basin. Thus the plaintiffs say in their papers, over and over and over again, that they are only trying to stop "illegal" water use. The image they present is thieving farmers draining the scarce store of community water.
That is a false image, and not merely because there is plenty of water in the Columbia River. In the vast majority of cases, people are not using any more water than the allotment they or their parents or grandparents received decades ago when the Bureau's projects were complete. They are simply using that allotment more efficiently, growing more crops on more land with the same amount of water. And for this efficiency, an achievement in conservation (conservation, after all, is the wise use of natural resources), they are to be punished.
In the Columbia Basin Project, for example, there are ancient classifications of land for purposes of assessing repayment obligations in federal irrigation projects, and sometimes different classifications declaring what quantity of water may be applied to what particular parcel, and at what rate. What if a large center pivot distributing water in a huge and perfect circle covers some land that is not classified to receive the water? The environmentalists wish this land (and more) to be wasted, rather than feeding humanity. They want the farmers to own the land and pay taxes on it and do nothing with it..
Can this be what Congress meant to accomplish in establishing the Endangered Species Act? The Federal government has already concluded in section 7 consultations under the Act that the overall level of Columbia and Snake River flows does not jeopardize the continued existence of these salmon. The legal question raised by the enviros is whether crops must wither while bureaucrats scurry to complete yet another round of making paper, not salmon, consulting on the imagined effects of water spreading on salmon.
The plaintiffs say that a federal regulation requires these consultations because water spreading "may affect" salmon. If a center pivot system drips water onto land that has not been connected to the water with the right piece of paper, is it reasonable to say this is an "agency action" by the Bureau that "may affect" salmon? I suppose it is just as reasonable as requiring section 7 consultations before installing new traffic lights. Or putting fences by rivers in Seattle parks so swimming dogs won't disturb the salmon.
Anything "may affect" salmon, or it "may not". If you believe in the black magic of cumulative effects, everything is connected to everything, and the only way to save the planet is to have the government control and plan everything with "consultations", and maybe a "collaborative process", while economic development collapses under endless paperwork.
The enviros hope that Judge Marsh, who has written of his frustration with the lack of progress in salmon recovery, can be provoked into issuing an injunction that orders the Bureau to stop water spreading. They even open their memo with rhetoric about the "fifth H", "handwringing" by federal agencies, as one of the chief causes of salmon decline, to inflame the Judge's prejudice for action.
What can the Bureau do if ordered to "stop water spreading"? For the most part, it merely delivers the water to irrigation districts. So why is the Bureau responsible? And, indeed, why are the irrigation districts responsible, merely because they deliver water to their customers, the irrigators, who ultimately make the decision where to put the water for the best use of it?. One very right answer to the lawsuit (besides the lack of any link between water spreading and fish) is that Judge Marsh should dismiss the suit because the plaintiffs have sued the wrong people. Let the enviros go back to the drawing board and find someone, somewhere, who is spreading water, and sue them for killing fish--if they can. In such a case, the court might actually learn something about water spreading and fish.
As law has collapsed, and moral responsibility is no longer linked to legal responsibility, common sense has vanished. The priestly caste can waltz into court with nothing more than the general cries of alarm that constitute their memorandum, and invoke a judicial power that increasingly sees no limits in law to government control. So long as the districts and their customers depend upon the Bureau delivering water, the Bureau can threaten not to deliver it unless the districts and their customers do what the Bureau wants, "for fish" or any other politically-correct objective. Because the Federal government has the raw power to force the result sought by plaintiffs, and because the courts no longer see virtue in restraining federal power, the lawsuit poses a threat.
The Federal government developed the evidence for the environmentalists: the Interior Department has declared that 12 of the Bureau's 32 Columbia Basin products deliver nearly 300,000 acre-feet of water to land not authorized to receive it. It says that in the Columbia Basin Project, between 42,000 and 53,000 acres of land are "illegally" receiving water. By this injunction, plaintiffs seek to use the raw power of the Federal government to conduct an Inquisition, turning the Bureau, the irrigation districts, and even cooperative farmers into agents of the Inquisition, charged to track down and identify the owners of land who have committed the heresy of efficiency, and turn off their water.
This is an evil way to go about improving Northwest water policy. If the environmentalists want to put more water in the rivers, consistent with justice, they would buy it from those who have the rights, rather than manipulating the levers of government to steal it from those too poor and disorganized to defend themselves.
For the farmers are not defending themselves. Even though the plaintiffs filed this lawsuit back in February, stating quite clearly what their objectives were, none of their targets have so far seen fit even to intervene in it. Thus the only parties standing before the Court so far will both promulgate the lie that flow augmentation is critical to the continued survival of Columbia Basin salmon. (This is, after all, gospel for the enviros and official policy for the feds.)
Judge Marsh may never even hear the truth: nothing that happens in this lawsuit will have any measurable effect on salmon whatsoever, except by accident. It is as likely as anything that a clumsy injunction's greatest effect would be to shut off irrigation whose return flows sustain intermittent streams on the edges of irrigation districts, and that those streams maintain a web of life that includes salmon.
What would it mean to mount a real defense in this case? Farmers would have to move quickly to intervene in the lawsuit since a hearing will be scheduled soon. (Shameless plug: I stand ready to help, and I know no one who can do a better job.) Farmers would have to hire scientists to testify that their water spreading has no discernable effect on salmon. One can imagine effects in theory, but in reality, the irrigation of any single farmer has far less impact on salmon than the grant of a building permit in a Northwest city. A parade of farmers will have to be summoned to appear in court, people willing to testify about really good examples of the hardship and folly that would result from issuing an injunction. I would even recommend that the farmers load buses to bear witness when Judge Marsh finally makes his ruling. The Tribes always have members to bear witness at his salmon proceedings.
Of course, Judge Marsh might not even let farmers and irrigation districts intervene in the case, or listen to their witnesses, before making his decision. These are uncertain times, and there will be those who counsel that the Bureau has everything under control, and that it is not worth the effort to point out the truth to Judge Marsh. But if the farmers don't make an effort, I don't expect they will be very happy with what they get.
© James Buchal, May 20, 2000
Links: Preliminary injunction memo (Webpage; Microsoft Word document)
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