News from the Front #48:
A Speech for the May 7th Klamath Project Rally: The God Squad Is Your Best Hope
A lot of people have been down in the Klamath Basin telling a lot of lies, and it seems to me that somebody ought to tell the plain truth about what's going on here. Everybody knows that endangered fish aren't going to get wiped out by delivering water to the farmers from the Klamath Project, but that doesn't matter because science is dead. Everybody knows that the Eastern liberals aren't going to let the Endangered Species Act get amended in any way that does much good, but the politicians all come down here and tell you that's the answer. And although everybody doesn't know it yet, the law, and even the Constitution, have been swallowed by environmentalism, so law is pretty much dead. That leaves one option that nobody seems to be talking about much: the God Squad.
How the God Squad Works
Once a species in the Klamath Project is listed, whether or not the listing makes any sense, the fish and wildlife agencies are required by law to consult with the Bureau of Reclamation on Klamath Project operations, and offer an opinion as to whether proposed operations "jeopardize the continued existence of" the listed fish. Congress eventually recognized that sometimes federal actions ought to go ahead no matter what fish and wildlife agencies say, so Congress amended the Endangered Species Act to add an exemption process. In other words, the Bush Administration has the power, upon an appropriate showing of fact, to grant an exemption for the Klamath Basin Project so that Klamath farmers can keep farming, without amending the Endangered Species Act at all.
Section 7(e) of the Endangered Species Act establishes the "Endangered Species Committee", composed of the Secretaries of Agriculture, Interior, the Army, the Chairman of the Council of Economic Advisors, the EPA Administrator, and the Administrator of the National Oceanic and Atmospheric Administration, and one individual from each affected state. Gale Norton, as Secretary of the Interior, is the Chair of the Committee. The Committee is called the "God Squad" because it has power to authorize a federal agency action even if the action really will wipe out an endangered species.
Unfortunately, ordinary citizens oppressed by crazy Endangered Species decisions can't necessarily file an application for an exemption. Pursuant to section 7(g)(1), only a "federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license applicant may apply". As far as I know, none of the Klamath Project farmers applied for any permit or license from the Bureau to farm this year; they relied on the contracts their irrigation districts have with the Bureau. The farmers could hire a lawyer to claim that they were applicants within the meaning of the Act -- "any person . . . who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action" (50 C.F.R. 402.02) -- but courts nowadays have essentially abandoned the job of protecting the economic interests of citizens from government depredation, so legal action is a last resort. Even if the farmers gave up on trying to get their water, and sued the Government for taking it, it would take years to get paid, if at all.
As a practicing environmental lawyer, I have come to the unshakeable opinion that environmentalists who have taken over the Federal resource agencies would be rendered virtually powerless if they had to defend their Endangered Species Act decisions in front of an ordinary jury of citizens. But because citizens challenging Endangered Species Act decisions don't get jury trials, and don't even get to discover and present evidence (other than evidence hand-picked by Justice Department attorneys), things just get crazier and crazier. Only you can solve that problem once and for all, and only through mass political action. Lawyers and judges and Congressmen can't do the job.
It makes sense that the Bureau of Reclamation wasn't willing to lift a finger to seek an exemption from the Endangered Species Act. The agency is infested with environmentalists, and President Bush has yet to begin cleaning that Augean stable. But why aren't Governor Kitzhaber and/or Governor Davis willing to ask for an exemption? Granting an exemption from the Endangered Species Act would be heralded as the end of the world as we know it by the leftist media, but Governor Kitzhaber could probably get a pass on requesting the exemption. After all, no one bitched at him for saying that the Endangered Species Act needed amending -- albeit perhaps because they knew he didn't really mean it. Senator Smith, expected to run against Governor Kitzhaber, has a golden opportunity to put it to the Governor by calling on him to seek the exemption -- if he has the courage to oppose Republicans-in-name-only inside the Beltway (and out) who would rather keep the Klamath hot potato off the Bush Administration plate.
No exemption is going to to happen unless the Klamath Basin farmers get organized to fight a political war. They need to take their protests out of the Klamath Basin and into the Governor's front yard. Literally. Taking to the streets works; that's why leftists do it. This morning's Oregonian shows how well it works in Oregon: the City of Portland is excusing the May Day leftists from protest regulations, apparently because they were willing to get arrested last May. It may well be that a few farmers will have to get arrested in order to generate enough political pressure to keep the Klamath Project running. As the great African-American abolitionist Frederick Douglass explained:
"Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong that will be imposed upon them, and these will continue until they are resisted with either words or blows or with both. The limit of tyrants are prescribed by the endurance of those whom they oppress."
For a long time now, the Federal government has been engaged in the business of finding out just how much rural America will "quietly submit to". The Federal government won't back down unless the Klamath farmers demand that it back down. If Klamath farmers get organized, and support each other just as they did during the Great Depression when monied urban interests moved in for the kill, they can win.
I understand that it may be too late for most farmers in the Basin this year, with the possible exception of the alfalfa growers on which coastal dairies depend. Many will be tempted to abandon farming, and sell farmland to the enviro-carpetbaggers now arriving in the Basin to pick it up on the cheap for "conservation". But if the farmers do not fight now, when will they? Just how bad do things have to get before rural Oregonians are willing to rise up and tell remote, uncaring urban interests to quit their pernicious intermeddling? If taking every drop of water away for bogus Endangered Species Act listings is not resisted as the tyranny it is, what will be left in the long run?
The Nature of a God Squad Hearing
The exemption process is spelled out in sections 7(e)-(p) of the Endangered Species Act and two federal regulations implementing the statute, 50 C.F.R. Part 451.02, and 50 C.F.R. Part 451.03. There are a fair number of procedural steps, culminating in a formal hearing where the farmers ought to be able to make their case that federal government has no business invoking the Endangered Species Act to cut off their water.
Our "leaders" will tell the farmers that the process is cumbersome and time-consuming. But the fact remains that the average school bully gets more due process than all the farmers in the Basin put together, and when the federal government wants to conduct a hearing quickly, it can. BPA's rates from 2002-2006, with billions of dollars in charges at issue, will be set after a formal hearing that lasted only two days.
Our "leaders" may tell us that the God Squad will be divisive, and that we should work toward "consensus". But consensus with fish extremists does not produce rational results, and the Federal government has already shown just how much it respects consensus -- not at all.
At a God Squad hearing, the Klamath Farmers can prove that there is no chance that coho salmon and suckers are about to disappear off the face of the earth, and no real grounds for the Endangered Species Act to be invoked. Suckers wander all over the Basin, including inside irrigation canals, and trying to exterminate them would be like trying to exterminate dandelions. These are the same fish that, when they are present in other rivers, environmentalists claim are "trash fish" and "emblems of environmental degradation". We all know that the fishery agencies used to try and kill the same fish.
As for the coho salmon, the Klamath River was never an ideal home for them, and never will be, unless the glaciers come back. In one of the biological opinions that has put the farmers out of business, the National Marine Fisheries Service says that "the Klamath River has probably always been a relatively warm river" (p. 15). It gets so warm that from July through September, the coho just can't survive in the Klamath River, no matter what farmers do. So no one will ever find very many coho in the Klamath. Indeed, the biological opinion says they have no idea how many coho are in the River: "information on coho salmon population status or trends in the Klamath River Basin is incomplete, but what information exists suggests adult populations are small to nonexistent in some years" (p. 7)
There are plenty of coho salmon off the West Coast, enough that fishermen caught 140,000 of them in the year 2000. And that's just the harvest that they bothered to report. For all we know, they caught twice as many. So what is the federal government's excuse for pretending these fish are endangered? It's boilerplate: the Southern Oregon/Northern California coastal coho are "depressed relative to their past abundance". (p. 26) So forget about the risk of extinction, it's all about whether there are as many salmon around as there used to be. But there's never going to be as many salmon as there used to be, because there didn't used to be big ocean-going troll fleets catching them all, and there didn't used to be dams on the Klamath River that the fish can't get past.
Now the science on why fish need the farmers' water isn't any better. Just to show you how crazy decisions can get when no one is accountable, consider two sentences in the biological opinion from the very same paragraph (p. 24). First, after recognizes that water from the Lake is very warm, the Service opines that "higher flow releases from [Iron Gate Dam] than those that would occur under the proposed action [i.e., with farming] are not expected to result in elevated water temperatures downstream". Now, you might think that well, maybe it's just not enough water to make a difference. But read the second sentence: "the increased thermal mass of higher [Iron Gate Dam] releases during this period would result in generally decreased dirunal temperature fluctuations that can be stressful to fish". So the same irrigation water that wasn't going to warm up the river is going to keep all the little salmon warm at night, because it sure can't cool them off.
You won't find the common sense in the biological opinion that every fisherman knows: when the water is warmer, the fish just go deeper, and come up an night to eat when it gets cooler. And you won't find the common sense that every grade school child knows: fish don't die just because you put them in a smaller bowl, but they'll die pretty quick if the water gets too hot. But now we've got "scientists" who want to conduct a fish fry this summer, because hey, fish need water. And as for the farm-based ecosystem that will dry up this summer, killing untold number of birds and small mammals as the very ground itself blows away, well, the government isn't paying scientists to worry about those environmental problems. Only the farmers, who are the true stewards of the earth, do care.
The people who signed the Declaration of Independence complained that King George had "erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance". Since 1992, armies of bureaucrats have swarmed over the Klamath Basin, eating out the Substance of the Klamath farmers. After Secretary Norton holds a God Squad hearing that develops the foregoing facts, the Bush Administration will have the power to evict these "Swarms of Officers" from the Klamath Basin, and decree once and for all what should be done for the suckers and coho. That worthy goal stands within the grasp of the people of the Klamath Basin, if they can unite to achieve it.
© James Buchal, April 24, 2001
You have permission to reprint this article, and are encouraged to do so. The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.
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