Breaching opponents seeking answers from feds

Congressional Republicans will attempt to shine a light on the pending but still confidential settlement of the long-running salmon and dams litigation in the Columbia River basin today.

Members of the House Subcommittee on Water, Wildlife, and Fisheries will question members of the Biden administration and other witnesses at noon today about the draft settlement.

Parties to the agreement remain bound by a confidentiality order put in place two years ago when the plaintiffs and defendants agreed to begin mediated talks that included a proposal to breach the four lower Snake River dams to help recover threatened and endangered wild Snake River salmon and steelhead.

The subcommittee is chaired by Rep. Cliff Bentz, R.-Ore., who along with fellow Republicans Russ Fulcher of Idaho and Cathy McMorris Rodgers and Dan Newhouse of Washington published a leaked draft of the settlement late last month. According to that document, which may not be up to date, the Biden administration is proposing to help the Nez Perce and other Columbia River tribes that possess treaty-reserved fishing rights on the two rivers develop 1,000 to 3,000 renewable energy resources. If Congress were ever to authorize breaching of the dams, the tribal power resources would be counted as replacement for power generated at the dams. The administration will also carry out studies on how to replace barging and irrigation if the dams come out and it pledges financial support for other salmon restoration efforts throughout the Columbia basin.

Many of the administration officials who have been invited to testify — like Richard Spinrad, administrator for the National Oceanic and Atmospheric Administration; Brenda Mallory, chairperson of the White House Council on Environmental Quality; and John Hairston, Bonneville Power administrator — are likely to cite the confidentiality order and refrain from talking about the agreement.

Others, including Scott Simms, CEO of the Public Power Council, and Neil Maunu, executive director of the Pacific Northwest Waterways Association, are also parties to the litigation as defendant intervenors. However, they have talked about the agreement following the release of the leaked draft. They fear the agreement is a road map to future breaching that would end grain shipping and hydropower production at the Snake River dams.

One of their complaints is that the agreement was negotiated in secret.

“Throughout this two-year process, we have effectively been shut out and had our navigation and transportation concerns largely ignored,” Maunu said in a news release.

The agreement was hammered out behind closed doors. But that is standard when parties to a lawsuit enter settlement talks. Barbara Cosens, a retired University of Idaho professor specializing in water law, said confidentiality encourages open dialogue and protects the parties in the event that a settlement doesn’t come together.

It does get tricky, she said, when one of those parties is the government.

“Contention comes when you have a settlement of a lawsuit that involves something that is a major issue of public policy, which obviously the Snake River dams are,” she said. “I would say that we, as a democracy, have still not come up with a good way in our legal system to handle that.”

Some defendant intervenors have complained that although the proposed settlement has been shared with them and they had the opportunity to provide official feedback, they were not at the negotiating table. Cosens said that is also common in lawsuits involving many ancillary parties. She used the example of a hypothetical lawsuit over water rights involving the federal government and a state. She said the two parties can settle, even though many thousands of other people have water rights that may be affected.

When it comes to tribes, she said history is crowded with examples of them not having a voice in decisions affecting their treaty rights.

“That sort of process of deciding the rights to the river has been going on for several hundred years and many of those decisions as to whether a dam is going to be built, as to whether water gets allocated a certain way, have been detrimental to the tribes,” she said. “So this same legal system is what they are using. I think it’s hard to criticize them for using the same system that others have.”

Simms has said the agreement is far-reaching and threatens the “vitality” of the entire federal hydropower system in the Pacific Northwest. Kurt Miller, executive director of the Northwest Public Power Association, wrote to Secretary of Energy Jennifer Granholm to make a similar complaint.

Just how far agreement goes likely won’t be made clear until it is finalized and becomes public. That may happen Friday, when a deadline to the stay in litigation is set to expire.

Barker may be contacted at ebarker@lmtribune.com or at (208) 848-2273. Follow him on Twitter @ezebarker.