The citizens of Orofino continued to gather information on the adverse impacts of the reservoir drawdowns and eventually engaged the Mountain States Legal Foundation to assist them in prosecuting their claims. Like most of the victims of the Clinton/Gore administration's salmon programs, the Orofino residents could not afford to hire lawyers, and had to rely on public interest organizations to represent them. The following spring Bruce and I returned to Orofino to bring Paul Seby from the Defense Fund up to speed. Mr. Seby, a bright young environmental lawyer from Denver, worked frantically to get the case heard on a more expedited basis. This time, thanks to the Idaho Farm Bureau, which had sent a film crew up to the reservoir to film the adverse impacts of the drawdowns, we had a videotape to show the judge.
Mr. Seby and I worked to prepare a second round of affidavits, updating the prior year’s affidavits and adding more from area residents. Mr. Irby, who was responsible for a local lumber mill’s operations, explained how the drawdowns had destroyed all possibility of using the reservoir to transport logs cut from the forests surrounding the Reservoir. He also pointed out that log rafting was the most environmentally-benign method of moving the logs, since fewer roads needed to be constructed, and less energy spent moving the logs.14
Mr. Grunke reported that the Corps had finally conducted a survey of the losses resulting from the drawdown, which disclosed that the community had suffered losses of over $15 million, including the loss of 135 jobs, as a direct result of draining the Reservoir. At the same time, the Corps’ environmental analysis pursuant to the National Environmental Policy Act continued to report only a “slightly negative” effect.15
On July 20, 1995, a second hearing was held before Judge Lodge. Mr. Seby presented several witnesses, who amplified on the testimony they had given in their sworn statements. Dr. Harper testified that the recreational value of the Reservoir had been destroyed. James Grunke testified about the enormous economic losses to the community. The Manager of the Dworshak State Park testified that Park visits had dropped sharply. Alex Irby confirmed that it was now impossible to transport logs through the reservoir, as the log handling facilities were left high and dry. Lindsay Nothern of the Idaho Farm Bureau Federation played the Farm Bureau’s videotape showing dead and rotting elk littering mud flats in the reservoir, and others testified that no one would go near the Reservoir when water levels dropped to the lowest levels. Indeed, he testified that most of the footage “was too graphic to be used in a regular news story”.16
Mr. Nothern also tried to testify about the Idaho Department of Fish and Game’s efforts to cover up the problems by removing the elk carcasses before anyone found them. Unfortunately, the U.S. Attorney was well prepared, and fired off an objection before Mr. Nothern could even start that story. 17 It was peripheral to the claims.
The government presented testimony from National Marine Fisheries Service fishery scientist Chris Toole, who confidently asserted for the U.S. Attorney that “granting of this injunction would cause instant mortality to downstream migrating juvenile fall chinook salmon”.18 He was, however, unable to quantify any benefits achieved from the releases, instead offering speculation based on the changes in PIT-tag detections from a low flow year (1993) that survival might double.19 No analysis or evidence was offered on the effect of adding additional water in an average water year, like 1995, because none existed (or yet exists).
David Ponganis from the Corps of Engineers explained how the Corps had conducted its NEPA analyses. He confirmed that the NEPA analysis “does not cover summer releases out of Dworshak”.20 Normally, if the federal government takes an action without subjecting it to NEPA analysis that has an adverse effect on the environment, the action will be enjoined.
Russell George was the hapless witness from the Corps assigned to defend the idea that the Corps had authority to drain the reservoir in the summer. Mr. Seby conducted an effective cross-examination, first getting Mr. George to admit that the discretion of the Corps “and its scope with limits is set forth in the Corps of Engineers Regulations”.21 Mr. Seby then read a regulation stating that further Congressional authoritization was not required to revise reservoir operating plans “if the related revisions in the plan would not significantly affect operation of the project for the originally authorized purposes”.22 Mr. George began to quibble with the word “significant”, insinuating that there was no significant difference between having the reservoir full in the summer vs. empty in the summer, and claiming ignorance as to the purposes of the reservoir.
Judge Lodge expressed frustration: “You get the witness here telling the Court that he does not know what the original purpose is, and while he may be only one individual out of a team . . . certainly a witness knows whether or not it was one of the original purposes, this flow augmentation for the movement of fish.”23 Of course it wasn’t one of the original purposes of Dworshak Dam to be a storage tank for flow augmentation purposes.
Mr. Seby was optimistic after the hearing. Observers from the Idaho Attorney General’s Office reported that the federal government had put on a terrible case. This was not surprising, since this was the first and only time that the government has ever had to present witnesses and evidence (apart from the “administrative record”) in court to defend its flow augmentation plans.
But when it came time to write his opinion, Judge Lodge invoked all of the pernicious doctrines we have seen before to deny any relief. He declared that even if Dworshak Reservoir were being operated inconsistently with Congress’ authorizing legislation, “plaintiffs have failed to establish any legally protected right or interest under applicable law that enables them to bring such a challenge”.24 He seemed to believe that even if the federal officials were violating the law, and injuring local residents, the law provided no remedy.
As for the NEPA claims, Judge Lodge declared that the citizens of Orofino were seeking to prevent “commercial losses”, and that “whether such losses will actually be sustained is highly speculative at this point”.25 In light of the economic devastation documented in the record, this finding was simply incredible.
Recognizing that Dr. Harper and others also claimed the loss of the ability to fish, a “recreational” interest clearly protected under NEPA, Judge Lodge found that “plaintiffs have not established that they have any legally protected right under NEPA or any other statute, including the authorizing statute for this project, to use that reservoir for recreational purposes . . .”26 Except for my experience with Judge Marsh, I would have thought that this was a truly remarkable opinion. Who would expect a federal judge to declare that citizens have no “legally protected right” to use a Reservoir that was sold to them on the promise that they would be able to use it for recreation?
All of Judge Lodge’s findings are variants of the “standing” excuse for refusing to hear cases. According to Judge Lodge, the government can violate the law, wiping you out financially in the process, and as far as the federal judiciary is concerned, you can do nothing about it. It may be unfair to single out Judge Lodge since this doctrine is now well-rooted in Ninth Circuit jurisprudence.
Judge Lodge went on to hold that Mr. Toole’s testimony “demonstrates that there is a compelling need for additional water to enhance the survival of juvenile fall chinook”, and that asking the Corps to prepare additional environmental analysis pursuant to NEPA “would itself likely be contrary to the requirements of the [Endangered Species Act] and would likely cause great harm to the listed species”.27 In short, the government had once again succeeded in demonstrating that if it merely asserts that it does something “for” an endangered species, it can violate any other law in the process.
14 Declaration of Alex Irby, July 1995, filed in Civ. No. 04-0330-N-EJL (D. Idaho).
15 Second Declaration of James Grunke, July 1995, filed in Civ. No. 94-0330-N-EJL (D. Idaho.
16 Clearwater County v. U.S. Army Corps of Engineers, No. 94-0330, Hrng Tr. at 36 (D. Idaho July 20, 1995).
24 Memorandum Opinion and Order, Civ. No. 94-0330-N-EJL (D. Idaho), July 1995, at 7.
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