Judge Lodge Declares that the Corps Can Nullify the Purposes for Which Dworshak Was Constructed

Mr. Seby knew that a preliminary injunction is an extraordinary remedy, and that sometimes a judge will ultimately grant relief even after a preliminary injunction is denied. So Mountain States Legal Defense Fund moved for summary judgment on the claim concerning the Corps’ statutory authority. Mootness had struck again to shut down judicial review of the NEPA claims, for the federal agencies had prepared yet another NEPA analysis, and Orofino would have to start all over again to challenge that document.

This time, the decision got even worse. After reiterating his earlier holdings, Judge Lodge baldly declared that the Corps was “providing for the multiple uses, including recreation and log transport at Dworshak”.33 After all, said the Judge, recreation was not “eliminated”. People could still come and look at the mud flats that used to be a beautiful reservoir. In a footnote, the Judge blamed problems in transporting logs on the Forest Service (which has nothing to do with the operation of Dworshak Dam); the fact that loggers would not buy timber on the basis that someday they might be able to get it to market; and “the inability to guarantee a certain level of water above minimum pool during summer months”.34

By the end of 1996, the kokanee population in the Reservoir had fallen from 1,300,000 to about 37,000, a drop that even the Idaho Department of Fish and Game called “alarming”.35

Undaunted by the legal setbacks, Mr. Grunke has kept up the fight to keep Dworshak full in the summer, shifting his focus to the political arena. But Northern Idaho is not the center of political power in the State of Idaho. The power center is the State’s capital, Boise, and the most powerful interests are well-organized farmers dependent on irrigated water and the Idaho Power Company.

Mr. Grunke continued to exert pressure on the Boise politicians, continually reminding them of Governor Phil Batt’s campaign promise to help the Orofino community. He recognized that the federal Clean Water Act gave states authority to regulate water quality, even water quality problems produced by federal agencies, and sought to get the State of Idaho to tighten up water quality regulations in the North Fork of the Clearwater River immediately below the Dam.

By limiting total dissolved gas and below-natural water temperatures, the water quality regulators could limit releases from the Dam. Mr. Grunke got the Clearwater Basin Advisory Group to recommend adoption of such measures, but the state water quality regulators were directed by the Governor’s office to ignore the request. Governor Batt had forged a shaky alliance with Idaho environmentalists and never really tried anything that might work to help the Orofino community.

The community continues to fight, and the government continues to find excuses to drain the Reservoir. In December 1996, the U.S. Army Corps of Engineers announced that it would have to be drained in the summer of 1997 to grout some leaks at the bottom. The Corps visited the community and announced that the problem was a “maintenance issue, not a safety issue”.

Once again, James Grunke went on the offensive, recognizing that the grouting plan was probably a subterfuge for draining the reservoir without taking the heat for wasteful salmon efforts. He asked why the grouting could not be rescheduled for some time other than the peak summer recreation season. He got some support in the Governor’s office. But then the Corps reversed its position, announced that the grouting was a safety issue after all, and Grunke gave up on efforts to keep the Reservoir full in 1997. Orofino’s struggle continues.

33 Clearwater County v. U.S. Army Corps of Engineers, No. 94-0330-N-ELJ (D. Idaho Nov. 1, 1996), at 13.

34 Id. at 13 n.7.

35 M. Maiolie & S. Elam, Dworshak Research Summary, Oct., Nov. & Dec. 1996, at 1.

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