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News from the Front #34:

Killing Endangered Suckers to Save Them:  The Continuing Collapse of Law 

"Expert discretion is the lifeblood of the administrative process, but 'unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster with no practical limits on its discretion.'"  

                                        Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962).

Across the Pacific Northwest, thousands of people are spending months and even years in exhausting negotiations with federal fish and wildlife officials for biological opinions under the Endangered Species Act (ESA) and environmental analysis under the National Environmental Policy Act (NEPA).  Like Orwell's pigs, however, some people seeking fish and wildlife approval are more equal than others.  

On Friday, August 18, 2000, the U.S. Bureau of Reclamation requested that the U.S. Fish and Wildlife Service issue a biological opinion that would authorize it to release 40,000 acre-feet of water from Clear Lake Reservoir (in Northern California) and move it from the Lost River Basin to the Klamath River Basin.  There, an army of federal lawyers representing the Klamath Tribe, in allliance with environmentalists, has ever-escalating demands for more water than the Klamath Basin can produce.  

The Bureau had to get a biological opinion from the Fish and Wildlife Service because Clear Lake is home to endangered Lost River suckers and shortnose suckers, and draining 16% of Clear Lake and quadrupling Lost River flows would kill lots of suckers.  Ever since the listing of the suckers in 1988, the U.S. Fish and Wildlife Service and the Bureau had been building the case (fabricating, some say) that suckers suffered if any human being used any water.  Taking water out of Clear Lake took away sucker habitat, injured water quality, spread disease and made it easier for birds to catch the suckers, said the Service.  Thus the Service held that operation of the Klamath Project (including Clear Lake) jeopardized the continued existence of the suckers.  If this finding were true (of course it is not), it would mean that any additional sucker deaths would tilt the balance and push the suckers to extinction.

But on Saturday, August 19, 2000, the day after receiving the Bureau's request, the Service declared that the Bureau's sudden releases would not jeopardize the suckers, even though the Service found that the Bureau would kill up to 1,000 additional suckers by sucking them out the bottom of the reservoir.  The Service's biological opinion simply ignored the effects of drying out Clear Lake, which has been designated a National Wildlife Refuge to protect sensitive wetlands, ignored the effects of filling the Lost River (proposed critical habitat for the suckers) with sediment and debris, and ultimately pretended that all of the adverse effects of water use it had been complaining about for years did not exist.  More precisely, the Bureau and the Service now took the position that so long as elevations in Clear Lake exceeded a minimum standard established long ago to keep the Lake from freezing solid, the Clear Lake suckers would be fine.  

Why did the Bureau need the water so badly?  It was going to miss a target elevation in Upper Klamath Lake by six inches at the end of September.  Upper Klamath Lake has a larger population of endangered suckers, and killing the 1,000 suckers in Clear Lake would "reduce risk" to the Upper Klamath Lake suckers, said the Bureau.  In fact, the suckers in Upper Klamath Lake could probably not feel the difference at all, unlike the 1,000 Clear Lake suckers that would be killed to save them.  

The irrigators who rely upon Clear Lake water did not appreciate these developments, primarily because taking the water would significantly increase the chance of a drought next year (there was enough water this year).  The irrigators also knew that after the Bureau killed its 1,000 suckers this year, it would probably come back in the future and insist upon taking more of their water for suckers--the fewer the suckers, the more water the Bureau could take for powerful downstream interests.  And even though the local Bureau official, Karl Wirkus, told them they would be sorry if they sued, because the Bureau would take away all their water, the irrigators had the courage to ignore the threat and to try and stop the Bureau.  They are real heroes.

The primary focus of the irrigators' attack was that in section 8 of the Reclamation Act, Congress demanded that the Bureau operate in accordance with state water rights, which would have required at least a temporary permit for the releases.  The Justice Department's response to this was simple:  "The role of state water law in defining the appropriation of water on project lands is, frankly, irrelevant."  In many Western States, state water departments will rush to court to defend their citizens from overreaching federal authority under the Reclamation Act, but Oregon's officials from the Governor on down seem keen to erode the State's sovereignty whenever possible.  They refused to get involved.

Because killing 1,000 endangered species and changing eighty years of precedent for reservoir operations was a "major federal action", the Bureau was required to comply with the National Environmental Policy Act (NEPA).  Thus the Bureau capped its extraordinary weekend efforts at environmental compliance by producing an "Environmental Assessment" on Sunday, August 20th.  The irrigators challenged the Bureau's environmental compliance pursuant to the Administrative Procedure Act, which is supposed to forbid agency decisionmaking that is arbitrary, capricious, or contrary to law.

As usual, however, the law proved irrelevant.  The first problem for the Bureau was that the Code of Federal Regulations requires it to publish a notice in the Federal Register if it proposes "an action with effects of national concern".  Since the entire premise of the Endangered Species Act is that killing listed species is a matter of national concern, thereby justifying the Federal role, one would think that killing endangered species constituted "effects of national concern".  The Judge made short shrift of this argument, declaring that "this is merely an operation to release water in a local reclamation project".   

An even better argument was that another Federal regulation set out numerous factors by which the Bureau was supposed to evaluate whether environmental impacts were "significant".  If so, the Bureau could not go forward with the action unless it conducted a full-blown environmental impact statement.  All of the relevant factors supported a finding of significance.  After the irrigators pointed this out, the Bureau did not deign to mention the regulation in its response, and the Court did not deign to mention it either.  

The facts proved as irrelevant as the law.  The Court had previously declared that the Clear Lake elevation standard, assertedly necessary to protect suckers, was adopted in violation of the Administrative Procedure Act--it was arbitrary and capricious.  Now, however, the Court allowed the Bureau to claim that because lake elevations would continue to exceed the (unlawful) standard, the analysis of effects on suckers was adequate.  

It was utterly irrational for the Bureau to kill up to 1000 endangered suckers in order to meet a lake elevation target without even bothering to figure out what benefits would come from meeting the target downstream.  (No benefits would, and according to a Bureau biologist, the Bureau wasn't even required to meet the downstream target.)  The Court had trouble explaining why this sort of decisionmaking was not "arbitrary and capricious", and retreated to the declaration:  "At this point in the proceedings and in light of the lack of present harm to plaintiffs, plaintiffs' assertions do not support an injunction".  The Court apparently regarded the interests of the suckers, targeted for extermination, as irrelevant.

The case appeared to turn on the Court's perception that the irrigators would still get their water this year, whether or not he granted the injunction.  By contrast, the Bureau threatened to kill up 65,000 acres of crops by cutting off water to other irrigators if it was not allowed to take the Clear Lake water.  The Court accepted the Bureau's threat at face value, and made a simple choice:  the Bureau was threatening to kill 65,000 acres of crops if he ruled against them, so he didn't.  

I can sympathize with the Court.  It was certainly easier to hit the Clear Lake folks with the risk of no water next year than turn the Bureau loose to torment other farmers.  But two wrongs don't make a right, and each time the federal judiciary capitulates to the Imperial Fish Troopers, they grow stronger and more arrogant.  

Indeed, four days after the Judge made his decision, the Bureau came after the other irrigators anyway, and shut off their water.  And guess what?  By September 30th, Upper Klamath Lake was more than six inches over the elevation target, so that the Bureau never needed the water anyway.  When the irrigators put these facts before the Court, the Court dismissed their case, declaring that there was nothing left to decide.   

James Buchal, October 3, 2000

You have permission to reprint this article, and are encouraged to do so.  The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.

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