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February 8, 2019
Siskiyou County Water Users: Hearing scheduled for DC Circuit Court on Writ of Mandamus regarding Klamath Dams, KRRC and Klamath Compact
Siskiyou County Water Users announced today that they have received confirmation that their Writ of Mandamus filed with the United States Court of Appeals for the District of Columbia Circuit in November of 2018 has been scheduled for the Docket in early March 2019. The water user’s attorney James Buchal with the firm of Murphy & Buchal LLP had filed the Writ of Mandamus to compel the FERC to rule on SCWUA’s Motion to Dismiss filed April 24, 2018. The instant action, a Writ of Mandamus, was filed with the US Court of Appeals D.C. circuit on November 21, 2018, to require the FERC to make a decision regarding SCWUA’s previously submitted motion. SCWUA had filed the motion to dismiss based on the Klamath Compact which is a Federal Statute intended to protect the Klamath River and the prescribed uses of the River including the hydro- electric facilities constructed there. It is our opinion that the parties to the Amended Klamath Hydroelectric Service Agreement and the States of Oregon, California and the other signatory parties to the Amended Agreement including PacifiCorp and the Klamath River Renewal Corporation are attempting to evade Federal law (PL 85-222), by seeking to transfer the dams to a third party, KRRC, for purposes of destruction of the hydroelectric facilities and the reservoirs behind them. This amended agreement was entered into on April 6, 2016. This third party we also contend is not financially or professional equipped to handle a project of this magnitude.
The Amended KHSA agreement was not submitted to the FERC for approval nor has Congress enacted any legislation to approve the process or amend the existing “Law of the River”, the Klamath Compact. The Klamath Compact was entered into in 1957 after many years of intensive and substantive negotiations between all parties for the purpose of managing the waters of the Klamath River, a federal asset. In fact the Compact was entered into pursuant to the US Constitution Article 1 Section 10 clause 3, commonly referred to as the “Compact Clause”. In fact the Legislatures of both Oregon and California had adopted the Compact which was then approved by Congress and enacted into law by the then President of the United States, Dwight David Eisenhower. The Compact language and its existence was supported at the time by several different legal opinions all of which held that the issues of the Klamath River were compelling enough to require the Compact Clause of the Constitution to be fully engaged. One of those opinions was drafted by then California Attorney, General Edmund G. Brown.
Article IV of the Compact states as follows:
“It shall be the objective of each state, in the formulation and execution of plans for the distribution and use of the waters of the Klamath River Basin, to provide for the most efficient use of the available power head and its economic integration with the distribution and use of water and the lowest power rates which may be reasonable for irrigation and drainage pumping, including pumping from wells.”
In an earlier form the original KHSA agreement was unable to garner public or Congressional support. The public responded to the earlier version with an emphatic vote to retain the dams. Known locally as Measure G it garnered nearly 80% of those who voted. More recently the public in Klamath County indicated in a poll that nearly 75% of the public favored keeping the hydroelectric facilities in place.
For the above reasons and others we adamantly feel compelled to demand that the FERC rule on our motion to dismiss. This actually should be the very first action by the FERC to respond to our request as opposed to continuing to move forward on the application submitted to it by PacifiCorp and KRRC as the ultimate decision regarding the Compact necessarily directs the action before the Federal Energy Commission.
Our attorney James Buchal of Murphy and Buchal located in Portland, Oregon, has filed our action together with nearly 200 pages of legal support documents.
The Board of Siskiyou County Water Users Assoc.
Richard Marshall, President
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