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Policy May Slow Dam Relicensing by Ken Dey Idaho Statesman, January 29, 2004

FERC required to treat tribes as governments

A policy requiring federal agencies to treat American Indian tribes as if they were foreign governments is threatening to add a new legal snag to Idaho Power´s efforts to relicense its three-dam hydroelectric complex at Hells Canyon.

The policy, enacted during the Clinton administration, encourages government-to-government meetings, often off-the-record, between tribes and federal agencies.

In this case the Federal Energy Regulatory Commission, which is considering Idaho Power´s application for a new 30-year license to operate the dams that supply the bulk of Idaho Power´s hydroelectricity, has invited five tribes with claims to Snake River water to meet privately with FERC officials.

The tribes are the Nez Perce, Shoshone-Bannock, Shoshone-Paiute, Umatilla and Burns Paiute.

But Idaho Power Co. and a coalition of water users are protesting the FERC plan.

In a filing with the federal agency last week, Idaho Power warned that holding off-the-record meetings with the tribes could “taint the entire licensing proceeding” and lead to a legal challenge once a new license is granted.

“This so-called government-to-government status is a relatively new catch word the tribes are using to somehow give them an extremely elevated status over every U.S. citizen that abides by the laws of the country, and I find it very offensive,” said Scott Campbell, a Boise attorney who represents the Payette River Water Users Association and the Pioneer and Settlers irrigation districts.

Campbell said the tribes have a clear agenda to take water in the Snake River to help fish.

Rich Eichstaedt, an attorney representing the Nez Perce Tribe, said the tribes have never tried to hide their goals for the relicensing process.

“The tribes have made it clear what our agenda is in the process,” he said. “We have treaty rights to fish, and those treaty rights include a right of water to protect fish.”

FERC officials say they are only following the federal policy that governs tribal dealings, and they said the meetings, which have not yet been scheduled, will be held to better understand the “interests and concerns” of the tribes.

But Idaho Power and Campbell´s clients say such meetings are unlawful and unfair to other parties involved in the relicensing process.

Last week Idaho Power filed a request for a rehearing on FERC´s decision to hold the meetings, claiming they violate the Federal Administrative Procedures Act which forbids any persons from outside the agency from having ex parte, or one-on-one, meetings with persons in the agency who are involved in the decision-making process.

“All those meetings should be open to all interests,” Idaho Power spokesman Dennis Lopez said.

FERC held public scoping meetings last November to accept comment on Idaho Power´s relicensing application. In November the agency also sent invitations to the five Northwest Indian tribes, giving them the opportunity to meet privately with FERC representatives to talk about the relicensing.

The tribes are among dozens of parties including state and local governments, other federal agencies, environmental groups, recreational groups and others who are lobbying for changes to Idaho Power´s operations in Hells Canyon.

Idaho Power said in its request for a rehearing that the project is of “substantial interest” to many parties of competing interests and allowing off-the-record meetings with only one of those parties is unlawful and raises issues of “fundamental fairness.”

A FERC spokeswoman said the agency couldn´t comment because of Idaho Power´s pending request for a rehearing, but in a written response to Idaho Power´s concerns Mark Robinson, director for the office of energy projects, said the meetings are authorized under a policy change implemented by FERC last summer to encourage government-to-government consultations with the tribes.

The Indian tribes are considered sovereign nations, which is essence makes them a separate government. FERC´s policy is similar to policies already in place at other federal agencies.

Robinson said those government-to-government meetings aren´t always guaranteed off-the-record status, but the commission´s rules allow the meetings to be held privately if they are done before a final environmental impact statement is issued. FERC doesn´t plan to issue a final EIS until April, 2005.

Campbell, the Boise attorney who represents the Payette River Water Users Association and the Pioneer and Settlers irrigation districts, said the tribes shouldn´t be allowed to have a private meeting with FERC. If the federal agency is making the exemption for the tribes, he said, it should offer the same opportunity to other parties.

“To suggest they (FERC officials) are being objective by allowing private meetings with Indian tribes that have a clear adverse interest to the positions of my clients is a violation of the fundamental concept of due process,” Campbell said.

Eichstaedt, the attorney representing the Nez Perce Tribe, said the private government-to-government meetings are not a new policy.

It´s a policy the Nez Perce Tribe has used with other federal agencies to discuss issues of concern, he said.

Eichstaedt said government-to-government consultations were the result of an executive order during the Clinton administration and FERC is one of the last agencies to implement such a policy.

In fact, Eichstaedt said, the FERC´s meetings will have even more disclosure requirements than meetings the tribe has had with other federal agencies.

FERC said detailed summaries of the meetings will be released after the meeting concludes.

But sensitive information regarding religious practices or locations of cultural sites important to the Indian tribes will be excluded.

“It will be an opportunity for the tribe to explain specifically what some of their concerns are, including sensitive issues that they may not want discussed in an open forum,” Eichstaedt said.

There´s been no ruling yet on Idaho Power´s request for a rehearing.