Hoopa Valley Tribe wins lawsuit against feds
The victory may expedite Klamath dam removal

Eureka Times-Standard by Philip Santos 1/29/19

A federal court of appeals ruled Friday that PacifiCorp, which currently owns and operates several dams along the Klamath River, can no longer continue to use a controversial tactic which has allowed the company to avoid implementing mandatory requirements meant to protect the health of the Klamath River for over a decade. The decision marks a victory for the Hoopa Valley Tribe, who filed the lawsuit, and may expedite the removal of several Klamath River dams.

In order for PacifiCorp to operate the dams they own, they need a license from the Federal Energy Regulatory Commission. But the last license they acquired expired in 2006. Since then, PacifiCorp, the Federal Energy Regulatory Commission, and the states of Oregon and California each acted to enable PacifiCorp to utilize temporary operating licenses without completing a pre-requisite water certification which would require dam modernization — a process that court documents say is presumably not cost effective, which is part of the reason PacifiCorp “sought to recommission the lower dams.”

“(The arrangement) serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project. …Thus, if allowed, the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing,” the court document stated. “The record indicates that PacifiCorp’s water quality certification request has been complete and ready for review for more than a decade… .”

Michael Orcutt, who is the Fisheries Director for the Hoopa Valley Tribe, and a Hoopa Tribal member himself, said the victory is a small part of a long fight for what the Klamath river needs.

“Today is but one part of the picture … there are still lots of challenges before us,” he said. “The Hoopa Valley Tribe has consistently from the start been an advocate for dam removal, but we haven’t been in the boat of saying that’s the only thing that needs to be done.”

Litigation is at times the last way to ensure compliance, he said, something that the tribe has unfortunately had to resort to frequently. The courts, Orcutt said, are just another tool in the toolbox to work towards a healthier Klamath.

“We are just frustrated,” he said. “We live on the Klamath-Trinity River, we see health warnings, decimated fish populations … we need to step up to make meaningful changes in turning this fishery around along with other related issues.”

Tom Schlosser, an attorney who represented the tribe in the case, said the temporary licenses allowed PacifiCorp to operate under standards from a license granted to PacifiCorp in 1956, before the Clean Water Act, the National Environmental Policy Act, fish passage provisions, water flow requirements and many other important laws were passed.

“None of these existed in 1956, but with a new license all of those laws have to be complied with,” he said. “The upshot of today’s decision is that it creates a backstop if (the current dam removal) process fails … if FERC issues a new license to PacifiCorp they’ll have to remove the dams.”

It’s either that, or PacifiCorp will have to invest tens of millions of dollars into modernizing the dams — which wouldn’t get reimbursed, he said.

Bob Gravely, a spokesperson for PacifiCorp, said the company is “still reviewing the decision to understand the implications fully.”

“We are still operating under the (current) settlement agreement,” he said, referring to the amended Klamath Hydroelectric Settlement Agreement which created the Klamath River Restoration Corporation that plans to take on dam removal efforts.

“Following through with the full water certification process when the dams were supposed to be removed did not make sense,” he said.

Initial conversations surrounding dam removal began in the early 2000s Gravely said, before the 50-year license granted to PacifiCorp in 1956 expired. The company never planned on re-licensing, he said.

Although the decision doesn’t necessarily impact the removal efforts pursued by KRRC, it may expedite the process, according to a press release from the Hoopa Valley Tribe.

But while those efforts have taken place, during the 13-year period PacifiCorp operated on interim licenses, they made about $27 million a year, Schlosser said.

“Why the states went along with it is just beyond me,” he said. “If they would’ve listened to the Hoopa Valley Tribe we would’ve figured this out 15 years ago … they should’ve listened when they said (the initial KHSA) is a steal for PacifiCorp!”

Schlosser’s sentiment was echoed by Hoopa Tribal Chairman Ryan Jackson.

“This case shows that states must not ignore the rights and interests of tribes with co-management authority regarding fisheries,” he said.

Philip Santos can be reached at 707-441-0506.

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