Hydro agreement changes made without using the
rule of law
by LAWRENCE A. KOGAN, Esq. Guest writer 4/10/16 for Herald and
On April 4, 2016, the Browns (Kathryn & Edmund) ruling the
Peoples’ Republics of Oregon and California, and U.S. Department
of Interior Commissar Sally Jewell proudly announced the
scheduling of an April 6, 2016 signing ceremony at the Yurok
This location is more symbolic than popularly realized because
the U.S. Constitution and federal and state laws largely do not
apply on sovereign Indian reservations.
This ceremony was arranged to celebrate with Warren Buffet’s
PacifiCorp, its primary economic beneficiary, the execution of
an amended interstate, intertribal and inter-municipal
governmental Klamath Hydroelectric Settlement Agreement (“KHSA”)
which Congress had rejected in 2015 since it was not in the best
interests of the American public.
All cynicism aside, this is a very grave matter that will
curtail U.S. agriculture in the Klamath Basin and elsewhere
throughout the West far into the future. When fully implemented
in 2020, the amended KHSA will secure the removal of four
perfectly operational dams — the John Boyle Dam in Oregon, and
Copco 1, Copco 2 and Iron Gate Dams in California.
The intergovernmental decision to remove these dams has several
questionable bases, each predictably favoring dam removal over
dam Endangered Species Act retrofitting.
They include, for example, a publicly unvetted and undisclosed
“private and confidential” PacifiCorp economic cost-benefit
analysis incorporated by reference into the definitional section
of the amended KHSA Federal and state government operatives and
lobbyists had secretly relied upon that analysis to portray as a
public benefit and secure bi-state approval of substantial
electric ratepayer increases in exchange for removal rather than
enhancement of existing energy infrastructure, and to curtail
the formation of nonprofit public utility districts which could
conceivably purchase the dams to stem their removal.
They also include various federal governmental scientific and
engineering studies and assessments the Interior Secretary
utilized to justify dam removal and to determine Upper Klamath
Lake and Klamath River levels, for purposes of protecting sucker
fish and coho salmon consistent with her recognition of the
aboriginal time-immemorial instream flow priority rights of
basin tribes, at the expense of irrigator water rights. However,
Secretary Jewell has failed to demonstrate how these studies and
assessments meet the strict peer review and substantive
standards of the federal Information Quality Act (“IQA”) (in
much the same way that former EPA Administrator Lisa Jackson had
asked the public to trust without verifying the IQA compliance
of the selectively chosen, postmodern non-empirical, climate
science she relied upon as the basis for reaching its
procedurally flawed Greenhouse Gas Endangerment Findings).
What is most disturbing and egregious, is the intentional
failure of these federal, state and tribal government officials
to follow constitutional and administrative processes and
procedures calling for public transparency, accountability and
due process guaranteeing members of the public an opportunity to
The convening of secret meetings open to only a select few
individuals who consent to executing nondisclosure agreements
that keep the subject matter of their negotiations hidden from
public and congressional view is an affront to our
Indeed, such officials’ practice of withholding disclosure of
the latest drafts of the new Klamath Power and Facilities
Agreement (“KPFA”) and the amended KHSA in which it is mentioned
until the last possible moment before a public meeting or
signing ceremony, demonstrates a blatant and wanton disregard
for constitutional separation of powers and the rule of law.
Pursuant to the KPFA, PacifiCorps will also transfer to the
Bureau of Reclamation full title and control over the Link River
and Keno dams just below Upper Klamath Lake, which serves as the
primary water source of the Klamath Irrigation District, and
practically the entire Klamath Irrigation Project.
Should the BOR also regain control over the “A” Canal of the
Project and the gate leading to it, Project irrigators will be
at the mercy of BOR and Fish and Wildlife Service officials
whose chief goal in life is to protect fish, tribal water rights
and unimpeded white-water rafting.
That some Klamath irrigators, especially Klamath Water User
Association and Klamath Water and Power Agency members, find
these Chicago mob practices acceptable is quite troubling. It
also is alarming to think that some of these individuals, in
light of recent whistleblower allegations and the ensuing
federal investigation it triggered, might be found to have
signed on to these agreements upon illegally receiving from BOR
officials up to $48 million of misappropriated BOR funds!
Don’t we all deserve better?
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