News from the Front #64:  

More Nails in the Coffin of the Rule of Law

Like Gulliver, the slumbering farmers of the Columbia Basin are slowly being tied down by an ever-growing web of regulations that will come as a shock when they awake.  The tiny minds of the Lilliputian bureaucrats hold only one idea: that the mighty Columbia River lacks sufficient water to maintain healthy populations of salmon and steelhead-notwithstanding the record returns in the last couple of years. While there may be problems in selected tributaries, the notion that the mainstem Columbia River lacks sufficient water for fish is absurd. Indeed, in 1980, the Washington Department of Ecology (DOE) issued an administrative rule declaring that 1.3 million acre-feet of water was available and reserved for future appropriations from the River.

Hundreds of applications for permits to appropriate water from the Columbia (and thousands statewide) are pending before the DOE, which is a stronghold of Lilliputian philosophy. Many applications were filed more than a decade ago, and DOE has yet to act on them.

In October 2000, the Columbia-Snake Irrigators filed suit on behalf of their members to compel DOE to act on the permit applications. Eventually, in March 2001, a settlement was reached in which DOE promised to act on the permits by the end of September 2001. In August, DOE informed the Irrigators that it would issue permits, but the permits would be worthless, because they would be "conditioned" so that no water could be withdrawn in July and August.

Why? Because the Columbia River was not meeting "flow targets" established by the National Marine Fisheries Service. Those flow targets had been set so they could never be achieved, even if humans were to evacuate the entire Pacific Northwest. They are the very model of modern environmental regulations; setting unachievable goals, they leave citizens at the mercy of the bureaucrats.

The Irrigators had submitted compelling scientific evidence that the flow targets lacked any scientific basis.  Keith Phillips, the Deputy Director, then told the Irrigators that DOE did not review and address the science in their proposed water rights decisions because it would offend Seattle-based environmentalists, the High Priests of the Lilliputians.

When the Irrigators asked me what might be done about this sad state of affairs, I pointed out that the flow targets, by their nature, constituted a rule of general applicability, and DOE had failed to follow the rules for passing rules. Specifically, under general principles of Washington administrative law, DOE is required to issue a public notice and take public comment on rules.  Rules may not be adopted behind closed doors by a single Lilliputian, unlike the decision on a single permit application, which can be. More specifically, DOE has statutory authority to set flow targets by rule, and only by rule.

As former Supreme Court Justice William O. Douglas once pointed out, "public airing of problems through rule making makes the bureaucracy more responsive to public needs and is an important brake on the growth of absolutism that now governs all of us". It is precisely this "public airing" of its absurd positions on flow that DOE seeks vigorously to avoid.

DOE did manage to follow the rules and set targets for the Columbia River in 1980, which were much more lenient than the current federal targets. Even those targets had come under political pressure as unrealistically high and DOE had been forced to repeal them, at least insofar as applications for the 1.3 million acre-feet of reserved water were concerned. In place of the flow targets, DOE substituted a rule requiring a "case-by-case" determination of permit impacts and consultation with fish and wildlife agencies.

The fish agencies (another Lilliputian stronghold) opined in these consultations that no one should ever take one drop more water out of the Columbia River, but the fish agencies were utterly unable to quantify any adverse effect on fish. Indeed, the sole evidence of effect of fish in the record accumulated by DOE over ten years was a computer modeling study submitted by one of the applicants. That model predicted a net annual loss of eight fish from withdrawing enough water to supply four cities for 50 years, but concluded that the predicted effect was so small as to be essentially a computer artifact, and non-existent as a practical matter.

Notwithstanding the obvious lack of substantive objections to issuing the permits, the Irrigators had a procedural claim: failure to set flow targets by rule. This sort of technical claim constitutes one of the last vestiges of the rule of law insofar as government agencies are concerned. Our modern judges shrink in horror from "second-guessing" the substance of agency decisions, but they do feel confortable declaring that agencies have failed to follow procedural rules. (Unfortunately, the latest innovation in administrative is to allow government decisions to stand even where the decisions were reached by violating procedural rules, but that problem was not present here because DOE had yet to make a final decision on the permit applications.)

In any event, at my suggestion, the Irrigators sought an injunction against application of the "flow target rule" to the permits.  DOE responded with a blizzard of meritless objections, the principal one being that it hadn't adopted a rule at all; it had just reached the same result over and over again through case-by-case consultation on each permit. The documents produced by its consultant, however, belied that claim, and the consultant admitted under oath that he had been instructed to apply the flow targets to all the permits.

On January 31, 2002, Judge Dennis Yule granted the injunction. But the Judge refused to admit evidence concerning the substantively meritless nature of the rule. Worse still, he lauded the Chief Lilliputian, a Mr. Barwin, for his performance in a "difficult job [of] trying to weigh the competing interests involving some very fundamental public policy issues . . .". This praise came after Mr. Barwin had admitted that Washington law required allocating water so as to achieve maximum net benefits for the people of the State, and that he had made no effort whatsoever to do so.

On March 21st, we returned to Judge Yule's court to seek summary judgment compelling DOE to issue the permits, or at least act upon the permit applications. The argument was simple: Washington's Administrative Procedure Act allows citizens to sue for agency action wrongfully withheld, where the agency's failure to act is arbitrary and capricious. This sort of ruling is routinely issued in politically-correct cases, as for example where DOE did not issue rules the High Priests thought sufficient to protect farmworkers from pesticides.

DOE strenuously resisted summary judgment, claiming that a full trial was necessary on its claim that ten years of failure to act was not arbitrary and capricious at all.  Indeed, DOE even claimed that the Judge should stay his hand until DOE could change the law by passing new flow rules. This latter argument opens a new frontier in government lawlessness; if accepted, it would allow agencies with duties under existing law to simply wait until the law is changed to suit their private conception of the public interest.

DOE also claimed that after ten years of investigation and the expenditure of $132,000 in consulting fees (involving some 12 applications), DOE "lacked sufficient information" to rule on the permit applications. DOE even went so far as to tell the Judge that it would be unlawful to issue the permits, insofar as issuing the permits would be contrary to the public interest on account of the imaginary eight-fish impacts.

This time, Judge Yule refused rule against DOE, recoiling from any assessment of the substantive merits of the dispute. We had, he said, failed to understand that his prior ruling was procedural, not substantive. We wanted, he said, for him to go "far beyond" his appropriate role as a Judge. Perhaps, he said, after a full trial he might issue relief, but relief was premature on this record. Again he genuflected before the significant public policy issues that he perceived to permeate the case.

Gulliver was able to wake up and break his bonds, and so too can the farmers. But Gulliver didn't break the bonds by petitioning the Lilliputian courts, and the farmers aren't probably aren't going to have a lot of success that way in the long run, because the institution of law is broken. Rather, the farmers, like Gulliver, are going to have to use force, not law to get free, force in the form of political organizing and outright civil disobedience.

I cannot help but observe that that it's not just me that's having trouble with the rule of law. A couple of weeks ago, one of the biggest law firms in Seattle, representing Methow irrigators, had a similar run in with the Lilliputians. According to United States Federal Judge Whaley of Spokane, no water rights issues are involved when the Forest Service destroys water rights by refusing to let irrigators deliver water over Forest Service land, and the affected irrigators even lack "standing to sue". Whether you hire a high-priced law firm or the humble author, the result is the same: the government is unconstrained by law.

James Buchal, April 4, 2002

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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