News from the Front #49:  

Judge Aiken to Klamath Irrigators:  Drop Dead

"And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter."   Isaiah 59:14

On Monday, April 30, 2001, United States District Judge Ann Aiken issued an opinion declaring, in substance, that equity cannot enter the United States District Court for the District of Oregon.  The Klamath irrigators sought equitable relief:  an injunction requiring the U.S. Bureau of Reclamation to honor its contracts, and deliver their water.  But Judge Aiken held that the Administrative Procedure Act "authorizes the court to 'set aside, rather than compel,' agency actions.  5 U.S.C. § 706(2)."  No such quotation appears in § 706(2) of the Administrative Procedure Act.  Indeed, § 706(1) specifically authorizes United States District Courts to "compel agency action unlawfully withheld or unreasonably delayed". 

But the letter of the law doesn't really matter anymore, and Judge Aiken's opinion is perfectly consistent with what now passes for "law".  For example, Congress declared in the reclamation statutes that the Bureau had to comply with state water law.  And the water law of the State of Oregon wouldn't let the Bureau take the irrigators' water away.  But Judge Aiken said, in substance, who cares about Oregon law, they haven't even finished the Klamath adjudication.   Why should we wait for the State of Oregon and its laws when the fish and the Indians need water? 

Congress put in the Endangered Species Act that agencies consulting on actions affecting endangered species must "use the best scientific and commercial data available".  But "weak evidence", says Judge Aiken, is good enough for government work.  Honest.  I don't make this stuff up; you can read it right in the opinion.   

Congress told federal agencies that they must do an Environmental Impact Statement if they take a "major federal action".  Even the definitions in the federal regulations confirm that leaving a farming community with 60,000 people high and dry is "major federal action".  So Judge Aiken came up with a novel argument:  the Bureau had no choice but to take the water and give it to the Tribes and the fish, apparently because agencies aren't supposed to take actions that would "have an adverse environmental impact" if they haven't done their Environmental Impact Statement yet.  This, of course, begged the question, since the irrigators pointed out all sorts of adverse environmental impact that would occur if the Bureau made striking operational changes.

Again, I don't mean to single out Judge Aiken, for her approach is typical of this generation of federal judges.  I doubt there is much chance that the United States Court of Appeals for the Ninth Circuit would reverse her opinion, though they might change the words or reasoning a little.  Many bitter experiences taught me this, including my loss in one of the key Ninth Circuit cases upon which Judge Aiken relied.  I had even better facts then than the irrigators have now, but I lost just the same.  

Science doesn't matter in the federal courts, because they don't think it's their job to protect citizens from government junk science.  And even if they did, the Clinton/Gore Administration spent eight years hiring junk scientists and building huge stinking piles of junk science that would take years to undo, if anyone had the urge.  The Klamath Falls Herald and News told us last week that "not a single government scientist indicated a willingness to defend the administration in court should it decide to deliver water to the irrigators."   You know what that means?  We aren't going to have sensible fish and wildlife policies coming out of fish and wildlife agencies until we get rid of all the junk scientists.  And the schools are turning them out like hotcakes, commencing the indoctrination in the state-run elementary schools.  My own kids are taught that a "law of ecology" is that "Nature knows best".

As far as I can tell, most public officials are no longer held accountable, perhaps because those with the power to hold them  accountable don't want to be perceived as "judgmental".  Indeed, such a failure of accountability may be what put Judge Aiken on the federal bench in the first place.  Back in 1993, having served as an Oregon state judge for five years, Judge Aiken presided in the case of State of Oregon v. Ronny Lee Dye, a 26-year-old man was convicted of first-degree rape of a 5-year-old girl.  Judge Aiken sentenced Mr. Dye to 90 days in jail, 5 years probation, a $2,000 fine, and enrollment in a sex-offender rehabilitation program -- she didn't feel he could get such treatment in prison.  By 1998, despite some squawking from the likes of then-Senator Ashcroft, she was easily confirmed as a United States District Judge.  Both Senators Gordon Smith and Ron Wyden voted to confirm her.   

Maybe Judge Aiken's opinion will, in some small way, help the Pacific Northwest awake from its long slumber.  Maybe Judge Aiken's opinion will help people realize that their government is rotting away, and that playing ostrich just makes things worse.  Because until people start getting a little judgmental, and demand accountability for endangered species nonsense, and all the other nonsense, things will get worse and worse.      

Yea, truth faileth; and he that departeth from evil maketh himself a prey: and the LORD saw it, and it displeased him that there was no judgment.  Isaiah 59:15

              © James Buchal, May 4, 2001

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.

Link:  Judge Aiken's opinion (.pdf)