The Orofino Community Seeks Legal Protection

Like most lawyers who do not specialize in environmental law, Nick Chenoweth thought that the law ought to provide a remedy for Orofino. He asked for our assistance in drafting a complaint to stop the releases. We met with the Clearwater County Board of Supervisors and the supervisors agreed that it was an appropriate matter for the county to pursue. Thus began the case of Clearwater County, Idaho vs. U.S. Army Corps of Engineers.

There were two claims in the case. Orofino residents had been involved with the federal government's attempt to comply with the National Environmental Policy Act ("NEPA"), as it applied to water releases from Dworshak, and found the effort utterly inadequate. The NEPA analysis coverage for the releases consisted of a page or two in two larger documents called the “Columbia River Salmon Flow Measures Options Analysis Environmental Impact Statement” (OA/EIS) and the “Interim Columbia and Snake Rivers Flow Improvement Measures for Salmon Supplemental Environmental Impact Analysis” (SEIS). In these documents, the U.S. Army Corps of Engineers, Bonneville Power Administration and the Bureau of Reclamation had agreed to analyze the environmental impact of various schemes to increase river flows sought by the state fishery agencies and tribes.

In doing this, they got off on the wrong foot with respect to NEPA because the most important part of NEPA is the requirement that the government study alternatives to the proposed action. Obviously, there are more sensible ways to attempt to manufacture salmon than manipulating river flows. By shutting down fishing for a matter of days a larger effect on salmon populations could be achieved than 10 years of flow manipulation. But the federal government refused to expand the scope of the NEPA analysis to include consideration of more sensible means of manufacturing salmon.

NEPA also requires that the federal government analyze the socioeconomic impact from its proposed course of action. The government's attempt to do this in the SEIS had enraged the citizens of Orofino. According to the federal bureaucrats, adoption of the reservoir releases would, under a median range of assumptions, trigger a loss for the community of approximately $7,854.7

Residents of Orofino knew that this was less than the loss of one of the many businesses that had failed in the wake of the drawdowns, and their own evidence suggested adverse impacts on the order of a million dollars or more. Thus, we prepared an affidavit of Mr. Grunke identifying the inadequacies in the government's NEPA analysis. He pointed out that “the lost revenue from a single houseboat rental season may exceed $7,854”. He listed several of the small businesses that had failed in the wake of the releases, any one of which “would have had annual receipts in excess of $7,854”. 8

NEPA analysis also requires that the government achieve a fairly full understanding of the adverse environmental impacts on its decisions. While there were references in the 1,000 page SEIS to possible harm to kokanee, the magnitude of the resulting fish kill was never anticipated by the drafters of the SEIS.

The second claim was directly under the Endangered Species Act and amounted to a suggestion that the reservoir releases were not necessary to help the salmon (see Chapter 7) and, by the government's own admission, could injure them.

The third claim was more subtle, but more important. Judicial decisions in the early part of this century rationalized the creation of administrative agencies under the theory that the discretion of the agencies was limited by law, so that courts would always be able to review the actions of administrative agencies to confirm that they had acted within parameters set by Congress. So long as the actions of the officials could be reviewed by reference to a standard set by Congress, there could be no objection that the establishment of the agencies represented an unconstitutional delegation of legislative power.

Unfortunately, Congress seldom does a very good job of establishing clear standards to guide administrative officials. Indeed, the orthodox view is that limiting the discretion of administrative officials limits their ability to “do good” and should be discouraged. The U.S. Army Corps of Engineers operates under a number of extraordinarily vague laws. In particular, the law authorizing the Corps to construct Dworshak dam merely suggests that the Corps is "authorized to construct the project . . . for recreation and other purposes consistent with the program described in House Document 403". A review of that document confirms that one of the primary purposes of the dam was to enable increase logging of the Clearwater National Forest. Logging roads are expensive, but log rafts are cheap.

By creating a reservoir hundreds of miles long extending deep into the Clearwater National Forest and state forests as well, Congress intended to facilitate the logging of all this area and specifically authorized the Corps to construct log handling facilities. The log handling facilities only work when the reservoir is full or nearly full. The Orofino citizens, including a local logging company, stressed in the lawsuit that the drawdowns had essentially nullified a critical purpose of Congress in constructing the reservoir. Congress had relied on the Corp's representations of substantial income to the local population from logging activities and improving the reservoir; the Corps had now shut down the logging by removing any ability to get the logs out.

We thought it likely that the Corps could not, as a matter of law, simply decline to pursue one of the critical purposes for which the reservoir was constructed. It would be as is Congress authorized the construction of a highway bridge and the Corps constructed a railway bridge instead. Dworshak had been converted from a reservoir that was full for log rafting and boating, to a giant water tank for flow augmentation experiments. In addition to completely nullifying Congress's ideal of facilitating log transportation, the drawdowns also rendered recreational boating nearly impossible. Most of the boat ramps simply did not extend down to water level during the summer season anymore. Only by backing down a single half-mile ramp, causing enormous delays for those few boaters willing to go, could boaters get their boats in the reservoir.

For many years, a lodestone of federal management of natural resources has been multiple use. Multiple use means what is says: when the federal government owns a resource, multiple uses of that resource should be encouraged in order to maximize the benefit to society that comes from ownership of that resource. In the case of the U.S. Army Corps of Engineers, this goal has been formalized since the 1950s through regulations that require the Corps to account to Congress for the expected benefits from public works projects.

7 SEIS at 4-132.

8 Affidavit of James Grunke, July 19, 1994, filed in Clearwater County v. U.S. Army Corps of Engineers, No. 94-0330-N-ELJ (D. Idaho).

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