| Comment: |
This comment focuses on the last part of Section 1 in the 7-10-13 draft comprehensive evaluation, pages 113-14 titled “Working with the Region,” which briefly touches on the relationship between the Columbia Basin Fish Accords, the Regional Forum, the Regional Implementation Oversight Group and the Northwest Power and Conservation Council’s Columbia Basin Fish and Wildlife Program. In some respects, this is far and away the most misleading part of the entire draft. What is most disturbing is that this is clearly intended to be the case. Take first the so-called fish accords. In the draft, these accords are characterized as “partnerships” between federal interests, various tribes and states that were entered to “strengthen the successful planning and implementation of actions under the FCRPS BiOp, especially tributary and estuary habitat actions.” This is simply NOT the case. The fundamental purpose and central reason for BPA and other federal agencies, including the U.S. Army Corps of Engineers, the Bureau of Reclamation, and NOAA Fisheries, entering into the accords was to remove the perspectives of tribes participating in the remand of the 2004 biological opinion from the purview of the U.S. District Court for the District of Oregon in Civ. No. CV 01-00640-RE (National Wildlife Federation, et al., v National Marine Fisheries Service, et al.). Put simply, the majority of the funds that then BPA-Administrator Steve Wright committed to draw down and divert from the Bonneville Fund—funds collected from BPA’s Tier One preference customers—to provide in the accords was hush money. Bribes. These bribes were offered/accepted to purchase tribal affirmation and support for a biological opinion that was facially flawed and structurally infirm, as well as secure the assurance that fish biologists and other scientists working for the tribal signatories would remain silent for not less than a decade regarding the obvious flaws and shortcomings of the document. With respect to the Regional Forum process that was developed back in 1995, the first thing that happened under the 2008 biological opinion is that it was decapitated. The executive, decision-making function was eliminated while the technical workgroups were maintained and expanded. Thus the so-called “Regional Forum” became a disjointed series of technical subgroups, which, as the 7-10-2013 draft notes may be convened as “appropriate for the issue at hand.” The Regional Implementation Oversight Group or “RIOG” was a creature created by BPA, the U.S. Army Corps of Engineers, the Bureau of Reclamation and NOAA Fisheries out of whole cloth in order to circumvent the ten-step, iterative process that federal defendants had committed to follow as part of the court-ordered collaboration on remand of the 2004 biological opinion. Instead of reaching agreement within the Policy Working Group on oversight and implementation, BPA and federal defendants simply ignored the views of other sovereigns and set up RIOG as a closed-door forum where federal defendants and aligned parties, under the guise of “adaptive” management, can cobble together a patchwork of reactive fixes to any challenge, legal or otherwise, that governmental or non-governmental parties objecting to flaws and infirmities in the FCRPS biological opinion might advance. Because RIOG is not open to the public and representatives of sovereigns participating in RIOG are not permitted to disclose the content of RIOG discussions, this forum allows federal defendants and aligned parties to avoid compliance with the substantive and procedural requirements of applicable law, including but not limited to the Endangered Species Act and the Clean Water Act. Finally, there is the Northwest Power and Conservation Council’s Fish and Wildlife Program. During the court-ordered collaboration on remand of the 2004 biological opinion, a majority of the members of the Council—all except representatives of the state of Oregon—made it clear to tribes and other sovereigns participating in the litigation or contemplating such participation, that support for the biological opinions, no matter how flawed they were, would be a precondition for securing access to BPA funding under the program. For tribes and other participants that agreed to support the flawed 2008 biological opinion, funding for projects would be forthcoming regardless of whether or not the projects were sound and notwithstanding any adverse review by any scientific panel convened under the auspices of the Council. For parties that did not agree to support the 2008 biological opinion, their projects would be subject to the “full force” of the scientific review. And it was clearly understood that the Council, or rather a majority of the Council, would be most unlikely to fund such projects if they were found lacking in any respect, which was almost sure to be the case. In a better world, this would be called exactly what it is—extortion—and would be prosecuted to the fullest extent of the law. But in the Columbia River basin, it has become standard operating procedure. Surprisingly, the U.S. District Court for the District of Oregon, the honorable James A. Redden presiding, understood exactly what was happening and, in fact, encouraged it! Thus, in March 2009 at the hearing on the 2008 biological opinion, Judge Redden began the proceeding by noticing then-Administrator Wright was in attendance, thanked him for the money he had committed to provide to silence litigants, and asked him if they could have some more! In doing so, he was obviously in flagrant violation of standards of judicial conflict. Curiously, none of the litigants objected to the District Court’s behavior. And when the transcript of the proceeding came out, Judge Redden’s remarks were purged, eliminated as if the words had never been said. Now, when the draft comprehensive evaluation concludes that this approach is “unparalleled” and “unprecedented” in the Pacific Northwest and in the nation it is accurate. But as those who were participants in the process must know, the relationships that have resulted in the actions described in the draft are not capable of being sustained absent an ever-increasing commitment of ratepayer funds to purchase the silence of litigants AND a continuation of judicial misconduct on the part of the District Court for the District of Oregon. It is inevitable that this approach will collapse as the commitment of resources and judicial misconduct become unsustainable in the region and in the nation. |
