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'Highly Irregular': Legal Experts Weigh In On Leaked Snake River Dam Package by Matthew Weaver Capital Press, December 8, 2023

There's nothing in the secret commitments the U.S. government made to plaintiffs in the case involving management of the four lower Snake River dams that anybody could sue over, according to a lawyer with experience in litigating similar disputes.

"It sort of shows what the agencies are thinking, but there's no cause of action here," Karen Budd-Falen, an attorney in Cheyenne, Wyo., told the Capital Press.

A litigant can only sue the federal government over a "final agency action."

"A draft is not a final," she said.

The government and plaintiffs are expected to present their proposed package in court Dec. 15. Several members of Congress leaked the package, which was negotiated in secret and excluded agricultural and transportation interests.

'Highly irregular'

The leaked draft "actually doesn't look like any other settlement that I've ever been in with the federal government," Budd-Falen said.

Normally, a settlement agreement is simply a statement of facts about the lawsuit, claims and previous court rulings, and the proposed settlement, "and then there's a lot of lawyer language in there," she said. "That's not what this was."

The leaked document gives more of what Budd-Falen considers "slanted background," to lead to "the conclusion (of what) the plaintiff and the Biden administration want to do."

"That's why I think this is more concerning," she said. "Normally, in a settlement agreement, you're not trying to lead anybody to a conclusion. ... I think this is highly irregular."

Background

Budd-Falen is well-versed in similar legal fights.

In the 1990s she represented the Washington State Farm Bureau in litigation with the National Wildlife Federation and others, which sought to remove dams on the Columbia River because of the endangered salmon.

She also served two years as deputy solicitor for wildlife and parks in the Department of the Interior in the Trump administration.

She follows the Snake River dam cases "just out of curiosity."

Budd-Falen said the leaked draft is "problematic" as the government and plaintiffs present their settlement agreement.

"I'm going to be really interested to see the differences in the language between the two," she said.

"Being with the Trump administration, it makes me nervous that the Biden administration would be in charge of the studies," she said. "I worry that some of these studies are not going to be fair studies."

The court does not have the power to make the agencies do anything without "a direct statute that says, 'Thou shalt take out dams,'" Budd-Falen said.

"Which there isn't," she said. "The only thing a court can do is say, 'You will study this and then reach a decision,' and then that decision can be challenged. But often how you couch the study is going to help shape the answer you're going to get."

Agricultural stakeholders and lawmakers have voiced concerns that the Biden administration or court could take steps to render the dams obsolete, such as by lowering water levels.

"The Biden administration can only do what's allowed by statute," Budd-Falen said. "If there is a substantive, statutory discretion on water level, they can do that. But they can't without completing an analysis."

Any analysis would be subject to public comment, she said.

Another perspective

Michael Blumm, a law professor at Lewis and Clark Law School in Portland, has been following the legal fight, but hasn't read the draft commitments.

Any analysis would be subject to public comment, she said.

Left out

Agricultural and public utility stakeholders who are intervenor-defendants say they have been shut out of the mediation process.

"I have seen it before, but I've been doing this 35 years, and I've only seen it once," Budd-Falen said.

She experienced a similar situation representing ranchers in the early 2000s, intervening on behalf of the U.S. Forest Service on categorical exclusions for grazing permits. An environmental group had sued the Forest Service, which won in district court. The group and Forest Service settled in the 10th U.S. Circuit Court of Appeals to redo grazing permits.

"Once they reach a settlement, you can then challenge the settlement agreement as an intervenor, but it is incredibly hard," Budd-Falen said. "Unless you show blatant violation of the law, just the fact that they exclude you is not enough to get the settlement agreement thrown out."

If the settlement agreement simply says more analysis will be done, intervenors must show that it's "highly prejudicial" to them, Budd-Falen said.

"Even if you think the answer to the analysis is going to be biased against you, that's not enough of a prejudice -- you have to wait until the analysis is completed, and then challenge it," she said.

Intervenor defendants can appeal to members of Congress, Blumm said.

"I don't think there's any legal remedy that they have," he said. "People try and settle lawsuits. The settling of that lawsuit would only involve the people that brought the lawsuit and the people who are the defendants in the lawsuit, not necessarily the people who are the intervenors in the case."

Next steps

Budd-Falen believes a letter sent by Reps. Dan Newhouse, Cathy McMorris Rodgers, Cliff Bentz and Russ Fulcher, the lawmakers who leaked the draft, questioning Biden and the White House Council on Environmental Quality was "very helpful."

"The court can't force agencies to spend money that Congress doesn't let them spend," she said.

She recommends the ag industry ask the lawmakers to consider exercising a budget option, such as saying an agency can't spend money on a analysis unless lawmakers are sure it will be legitimate and won't lead to a predetermined outcome.

'Endangered Species Act problem'

Budd-Falen thinks it will be "an important case to follow."

"The push is so strong to take out dams," she said, adding, "I'm not convinced taking out dams is going to restore salmon populations."

She points to "so many other intervening" issues.

"It seems like the agencies want to do the simplest solution on how to get a species off the (endangered) species list, maybe not the most effective," she said. "Taking out a dam would be simple and they could say, 'See? We're doing something,' when they're not doing anything about all the other problems."

That's an argument the agriculture industry has made throughout the mediation process, and hoped to make during the federal mediation.

Budd-Falen calls it "an Endangered Species Act problem."

"The Endangered Species Act doesn't say 'You should do the most effective thing to fix a species that's been on the list.' It says, 'Just do something,'" she said. "If you've got endangered species on a grazing allotment, even if grazing is not impacting the species, the easiest thing to do is cut the grazing permit, even if it's wholly something else that's the problem."

The 50th anniversary of the ESA was this year.

"I think the way we're looking at endangered species is so far off from what Congress thought was going to happen in the 1970s," Budd-Falen said. "There's a lot of things that need to be done to fix the act -- so the focus is looking at the species and actually recovering the species, not just keep putting species on the list forever and ever and ever."

Related Pages:
Inslee-Murray Report: Snake River Dam Breaching Not Feasible Now by Matthew Weaver, Capital Press, 8/26/22

Related Sites:
Leaked Document of 11/2/23 and letter to President by Rep. Cathy McMorris Rodgers