The EQC Strikes Out

The 1996 request for a waiver of Oregon water quality standards constituted the Commission's third opportunity to bring some common sense to the question of salmon recovery. Arriving at the hearing, I picked up and read the staff memorandum and was disappointed to see that it contained an unqualified endorsement of NMFS' spill proposal. Contrary to the staff's assurances the day before, it would not be Brian Brown of NMFS and I in a two-member panel debating the propriety of the waiver. Instead, there would be three proponents of the spill program, Mark Schneider, Fred Olney, and Brian Brown, as supplemented by Gary Fredericks and other policy analysts in the audience. The room was full.

After a good deal of preliminary banter among the commissioners, Russell Harding, the lead DEQ staff person, announced the procedure to be followed: first, the spill proponents would make their presentation and then there would be a panel of two "experts" (Brian Brown and I). The panel was supposed to answer questions from the commission. The spill proponents gave their presentation, which, among the three of them, lasted nearly 35 minutes. It was punctuated by sharp questioning from one member of the panel, Henry Lorenzen. I was pleased to see that Commissioner Lorenzen was still playing an active role. That morning an extraordinarily harsh piece had appeared in the opinion page of The Oregonian, which all but accused Commissioner Lorenzen of a betrayal of the public trust for daring to question the spill program. Luckily, he hadn't seen it.

Finally, it was my turn to speak. Having previously tried the theme that "the emperor has no clothes" (when the fish began dying in the net pens in 1995), I told the Commission my new theme was "where's the beef". I presented the results of Cramer's work and emphasized that the only scientific quarrel was over whether and to what extent the spill program had decreased salmon survival, there being no evidence at all that it had increased salmon survival as promised.

I then addressed the monitoring program and asked the commission to consider how they would deal with me if I represented the Amalgamated Toxic Sludge Company, and proposed the following: The company wished to dump large quantities of chlorine into a stream. They were confident that this would not harm the fish. To prove it, they proposed the following: a tube would be inserted into the stream. Any fish that swam up it would be put in a tank containing a material that absorbed chlorine. The fish would be allowed to heal for a while (and any fish that died would be removed). Then, technicians would examine the surviving, healed fish. The Company fully expected that no signs of environmental damage would be found.

This is a fairly precise analogy to the internal workings of the current smolt monitoring program. Russell Harding all but admitted this before the Commission, stating, however, that the difference was that no possible good could come from putting chlorine into the river, whereas some possible good could come from the spill that was putting dissolved nitrogen and other gases into the river.

Responding to my presentation, Brian Brown told the Commission that he was sorry if they had previously gained the impression that anyone from the Fisheries Service would be able to measure the benefits of what they were trying to do. This provoked an angry response from Commissioner Whipple, who said she felt misled by the fisheries agencies; that this was the third year in a row that they had come in seeking a waiver of the water quality laws; and now it was becoming apparent that they had no idea whether it was going to do any good or not. She said she would vote against the waiver, provoking a gasp from the audience.

Commissioner Van Vliet, recently appointed to the Commission by Governor Kitzhaber, attempted to characterize the situation as one of imperfect information where one didn't really know what the right thing to do was and maybe had to take a chance. He drew upon his personal experience to give an analogy of how it had taken ten years to build a computer model showing the effects of some other environmental decision. I quickly told him that the region had already spent the ten years building the computer model, the computer model said this wouldn't work and that was why the National Marine Fisheries Service had showed up that morning with a one-page spreadsheet that they had cobbled together trying to demonstrate some sort of benefits.

As the fishery representatives realized that their credibility was collapsing, particularly on the issue of smolt monitoring, they began to invoke a draft executive summary of NMFS' expert panel on spill. I was angered to hear this because I knew that the expert panel had not yet issued a report. I also knew about how a similar report last year had been "spun" by Dr. Coutant, much to the annoyance of the other panel members.

According to NMFS, the draft executive summary of the Expert Panel's report said that there was basically "no problem" with the smolt monitoring program. At this point, Commissioner Lorenzen, who had spoken to the chairman of the Snake River Salmon Recovery Team, and had reason to believe that this might not be accurate, announced that he proposed to split the spill program into two parts. First, he would deal with the March spill requested for hatchery fish, because the Commission had to make a decision, but the decision concerning the larger program, which would not begin until late April, would be deferred.

The hatchery program was ludicrous. Fred Olney, the U.S. Fish and Wildlife Service representative promoting this waiver, told the commission that increasing the survival of a group of hatchery fish (at a cost of $1 to 2 million) would help the endangered fish by reducing harvest pressure on them.

No one was permitted to tell the Commission that, in fact, the entire premise of the recovery plan for endangered Snake River salmon was to curtail hatchery production. Indeed, when NMFS listed the Snake River salmon, it warned that hatchery releases, like the Spring Creek hatchery release then at issue, could “result in competition for limited food and habitat . . . and, therefore, contribute further to the decline of wild Snake River fall chinook salmon”.39

Mr. Olney said that some 330 more fish might be caught as a result of the spill program and suggested that this was vitally important for endangered fish, because it would reducing fishing pressure on endangered salmon. Unfortunately, Commissioner Castle, who had openly ridiculed this notion the year before, was no longer on the panel. No one on the Commission challenged Olney's assertions.

My presentation had lasted less than 10 minutes. As the meeting went on, I tried to correct the gross misrepresentations that emanated from the fishery managers, but Chairman Wessinger would not recognize me. Finally, after about an hour and a half of misinformation from the spill proponents, I asked him for permission to speak on the ground that the proponents had been talking for nearly 30 straight minutes and had said many things that weren't true. I told him that it would be a good thing for the Commission to know what the misrepresentations were. He angrily refused. The other commissioners looked askance at him, but did not overturn his decision to silence me.

This is typical of how policy is set in administrative proceedings in the Pacific Northwest. Administrative agencies stage meetings before their governing bodies. By picking who is allowed to talk to the governing body, and for how long, the staff of the agency can very significantly influence the outcome. Ordinary citizens can come and speak for five minutes or so during a “public comment” period—and have no hope of overcoming hours of misinformation and outright misrepresentations by the preferred witnesses. It is the same story in Congress. Most of the witnesses at Congressional hearings are carefully-selected agency officials or lobbyists. The judiciary is the only branch where citizens can, in theory, get equal airtime, but for the doctrines of administrative law (discussed in Chapter 9) that disenfranchise them there, too.

As the Chairman called for a vote on the hatchery program, Commissioners Whipple and Lorenzen voted against it. Commissioner McMahan, who had also declared that she felt misled by fishery agencies, voted for the plan, but only because she said she thought it would help endangered salmon. Chairman Wessinger and Commissioner Van Vliet voted for the program without comment. Thus it came to pass that the State of Oregon's official policy was to spend $2,000 per fish to make hatchery fish survive to compete with endangered fish.

As for the proposal to spend tens of millions of dollars by spilling all spring and summer, the Commission agreed to defer resolution of it, awaiting the final report of the expert panel. Returning to the office, I made some inquiries of the expert panel members to find out what was going on. They were enraged. Apparently, the first thing the expert panel had done this year, given their prior experience with Dr. Coutant, was to adopt a resolution that no written materials would be issued without the approval of all the members of the panel, and to adopt Roberts' Rules of Order.

39 See 42 Fed. Reg. _____ (April 22, 1992) (referring to “large numbers of chinook salmon released from lower Columbia River hatcheries).

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