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On the home front 

Secretive settlement talks and a surprise lawsuit

For the past two years, up to 28 stakeholders have been meeting behind closed doors to negotiate a settlement that will provide a framework for a host of Klamath River projects aimed at fixing water quality and quantity problems throughout the entire river basin. The meetings have been secretive - the better to allow the oft-at-loggerheads parties to be open with each other - and the issues complicated.

These negotiations were embarked on as a parallel course to the Federal Energy Regulatory Commission's traditional approach to relicensing PacifiCorp's Klamath dams. The dams' 50-year license expired in 2006, but has been extended while FERC completes its final environmental impact statement. Parties to the talks, which are covering territory and issues that go beyond the scope of FERC, say they could be ready to present a package to FERC by November. FERC then has the option to incorporate into the new license the parts of the settlement that pertain specifically to the dams.

So who are these stakeholders, and what are they talking about? They include the Yurok, Hoopa Valley, Karuk and Klamath tribes; the Klamath Water Users Association; the states of Oregon and California; Siskiyou, Klamath and Humboldt counties; a slew of federal agencies, including NOAA, USFWS and the Bureau of Reclamation; and numerous conservation groups including CalTrout, Trout Unlimited, American Rivers, the Northcoast Environmental Center and the Pacific Coast Federation of Fishermen's Associations. PacifiCorp also has been at the table on occasion.

"It's the hardest thing I've ever been associated with," says Greg Addington, executive director of the Klamath Water Users Association, which represents irrigation districts in the upper basin. "You have vastly different philosophies and ideologies. You have people with years of history of fighting each other, and litigating. You've got all the players. You've got the tension of the Bush Administration."

While the parties have kept mum on the emerging framework, they readily reveal their expectations.

"We have three things we have identified from the beginning that we need to have addressed in a settlement," says Addington. The farmers want affordable power - something they've enjoyed for nearly a hundred years, initially in an agreement with the hydro dams' first operator. But PacifiCorp has decided not to renew its 50-year low-cost power contract with the irrigators, so the farmers could be in the market.

The farmers also want a known quantity of water. And they want assurances that salmon habitat restoration in the upper basin doesn't backfire on them. "If dams come down, if fish passage is put in, if there's going to be an introduction of fish to the upper basin - if people recognize it's a good thing to open it up to habitat - we're probably paranoid, but, the regulatory significance of that ... what does it mean for us?" Addington asks.

The tribes, conservation groups and some others want four dams removed by 2015, and for the river entire, including tributaries above the dams, to be restored.

"I think we're making big progress," says Craig Tucker, Klamath Campaign coordinator for the Karuk Tribe. "We're talking about instream flows in the river, and irrigation diversions - how much water can these guys take and leave enough for fish in the river, so we can have farms and fish? We're looking at a future where, every fall, there'll be a salmon and a potato festival.

"And, we're talking about affordable power rates for the farmers. Their power rates are going up 1,200 percent. Their power needs are relatively modest, so there's opportunity for them to set up their own power district, perhaps develop some solar energy. ... But they might need some funding. We're saying, hey, you help us with those dams, and we'll help you with your power."

Addington echoes that promise. "If we can achieve what we need, we'll help them achieve what they need," he says.

So everything's going swimmingly - except, that is, with one key stakeholder, PacifiCorp. "Most of the talks have been without PacifiCorp, because the company hasn't been very helpful," says Tucker. "They've refused to provide data sets. They keep giving lip service to settlement, and [they] have proposed options. But the options would not get the dams out in a timely manner."

At some point, Tucker says, a settlement package must be offered to FERC. "We can send it to FERC without PacifiCorp's endorsement, or we can convince PacifiCorp to come along and join us. ... We've got to get the company on board."

It's unclear yet whether two events last week might prod PacifiCorp in that direction - or make it balk even more. Warren Buffett, chairman of Berkshire Hathaway which controls the subsidiary that now runs PacifiCorp, didn't budge last weekend when North Coast tribal members appealed to him and his 27,000 attending shareholders to take down the Klamath dams. He said he left that decision to FERC.

Meanwhile, a lawsuit filed May 2 against PacifiCorp seeks immediate removal of the dams. The plaintiffs - the nonprofit group Klamath Riverkeeper and seven individuals (four Yurok and Karuk tribal fishermen and two tribal world renewal priests who use the river for ceremonies, and a Berkeley-based commercial fisherman) - claim PacifiCorp's dams have created disruptive flows and warm water temperatures, fostering growth of an algae called Microcystis aeruginosa. The algae has produced liver and tumor-promoting toxins recorded in concentrations far above World Health Organization standards for public safety, and "significantly reduced the Klamath fishery population, limiting both the tribe members' and the commercial fishermen's catch and jeopardizing their economic survival," according to the lawsuit.

"The people on the lawsuit are not part of the settlement talks," clarifies Regina Chichizola of Klamath Riverkeeper. "The reason we felt we had to file the suit was because the talks have gone on for a long time. With the algae, nothing has been happening. PacifiCorp has fought us every step of the way. And now, with summer coming, we're looking at toxic algae blooms up to 5,000 times the level" recommended as safe by the WHO. "We need relief."

The plaintiffs demand a jury trial. And their lawyers are heavy hitters. They include Joe Cotchett, of Cotchett, Pitre & McCarthy, and Robert F. Kennedy, Jr., of Kennedy & Madonna, LLP. "Why take this case?" said the brusque Cotchett last week on the telephone. "Why wouldn't I take it? They're very deserving and wonderful people. If you can't represent Native Americans, who can you represent?"

Cotchett frames the lawsuit somewhat differently than Chichizola. "The lawsuit was only necessitated by the fact that the resolution talks have either slowed down or stalled," he said.

Jill Geist, the Humboldt County supervisor taking part in the settlement talks, says she was surprised to hear of the lawsuit last week but notes that it deals specifically with the toxins. The talks focus on a multitude of long-term solutions to water quality and supply issues. "And you'll notice that the fingerpointing and rhetoric has toned down" between the farmers and fishermen, she says.

Addington, of the KWUA, says of the lawsuit that he "personally wouldn't have gone that route" and he hopes "they don't go too far." He also congenially refused repeated pleading by Tucker to join in on the Omaha demonstrations: "I told him it's really not our style. But we support what they're doing and their drawing attention to it. And at the end of the day, when we get ready to implement the settlement, we're going to need all the attention we can get."

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About The Author

Heidi Walters

Bio:
Heidi Walters worked as a staff writer at the North Coast Journal from 2005 to 2015.

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