Subject: San Bernardino Report: 12/12/14
Morning Settlement Discussions
When we arrived this morning, the Clerk handed us a tentative ruling from the Judge denying our motion to add in the State Water Board as a defendant, but lifting the stay for the purpose of issuing a decision on the long-pending motions for summary judgment on federal preemption issues. There was a brief discussion about the impacts of this ruling, but it was mostly posturing of no consequence.
Notwithstanding the ruling, we proceeded with the plan of discussing the checklists, and did so until shortly before lunch without the Judge.
The Department had Mr. Stopher describe, at great length, his approach in generating the checklist. He told us that the approach had been to identify those few species that triggered Class A closures, and that if a Class A closure were lifted, there might be other closures. E.g., even if coho were not present, sturgeon might be, which would be associated with a Class D closure from February 1st through June 30th.
He also generally confirmed our suspicion that a biologist would visit a site, and based on historical presence of fish, or assertedly-attractive habitat, identify fish “presence”. I pushed for the Department to identify specific habitat features of interest, and all I got was what we had put on our checklist: redds and pools.
There was also a discussion of the State-sponsored programs to add gravel, construct habitat, etc. The Department and Tribes dismiss the comparison with suction dredging with claims that the State’s habitat restoration projects are carefully engineered. I attempted to push the issue from a more ecological perspective (habitat complexity) and raised the possibility of mitigation, pointing out that the fear was eliminating an area where juveniles could hide from birds, perhaps the miners could pile up a pile of large rocks.
The Department resisted very vigorously any talk of mitigation, arguing that this made the determinations too complicated, and that additional CEQA documentation was required. The Tribe’s position is that mitigation means not operating. I believe that a supplement to the EIS could say that checklist-approved operations would not disturb a non-significance determination, and that if a further FONSI were required, the checklist itself could constitute it.
There was discussion of some of the species the Tribe had added to the checklist. It appears that the bull trout are actually extinct; the suckers are mostly upstream of Iron Gate, where there is assertedly no mining; and the eulachon and the smelt are too far downstream to matter. We stressed that our experience is that they just keep adding more and more species to the list to shut down mining without regard to actual adverse effects.
Mr. Craig Tucker noted that the Tribe had a spreadsheet of streams along the Klamath, and suspected that some of them might not be of interest to gold miners, and suggested it might be productive to see if we could narrow the field of battle by identifying the real areas of conflict. Later, I spoke privately to Ms. Saxton about this, but she seemed resistant. I will renew that effort later.
There was a brief discussion of other issues raised by the checklist, including birds and cultural resources. The Tribe confirmed that such abstract notions as “water quality” were regarded as a cultural resource from their perspective, making that issue a continuing threat. The Department handed us a copy of the Governor’s executive order requiring consultation with Tribes, and said the Department’s checklist had been developed in compliance with that order.
Shortly before lunch, the Department sought an opportunity to speak to the Judge privately, and then the Judge called Mr. Young and I in to see him. It appeared that the Department had wanted a private audience to complain that the Judge’s tentative ruling was encouraging the miners, with particular reference to Mr. Young’s clients, to abandon the settlement process. Mr. Young told the Judge that this was not the case, and that the Judge should go ahead and issue his ruling on the motion for summary judgment. I took the opportunity to tell the Judge about the problems we were having in the morning session, and about the inconsistency between the Department/Tribal position that mere presence of fish was sufficient reason to close the area to mining and the species- or at least population-level impacts required by the statute.
The Hearing
When we returned at 1:30 p.m., I attempted to get the Judge to reconsider his tentative ruling. I highlighted the fact that the Water Board would insist on reconsidering everything we had done, and that it was very wasteful to have to do it twice. I explained that his decision, premised on a statute that required challenges to Water Board action to be brought within 30 days after service of the decision, did not apply because we had never been served, and that the other two statutes he had cited were entirely inapplicable. Most of all, I stressed that his entire tentative ruling had addressed only one of three claims we had proposed to add, and that there was no such short statute of limitations for a declaratory judgment action. The Judge refused to change the ruling. This was quite disappointing.
The Department and Tribe argued forcefully that the Judge should not go ahead and issue his decision on the pending motions for summary judgment, because the Supreme Court could be expected to make a decision as to whether or not take the case (and whether to depublish it) within a month. The Judge, however, insisted that he wanted to act while he still had a published decision to back him up, and is working very hard to get the decision out the first week of January. The Tribe sought an opportunity for supplemental briefing concerning the Rinehart decision, but the Judge also refused that, saying that he had read enough briefs on the subject.
Continued Settlement Discussions
Thereafter we went back to the settlement room, where the Judge pressed the Tribe to determine what they meant by “direct and indirect effects” on species, confirming to his satisfaction that mere presenceand perhaps less than thatwas enough to close an area in the Tribe’s view. I renewed my push for clarification of what precise habitat features were of interest, but the Department and Tribe successfully diverted the Judge into an inquiry into the Tribe’s expanded list of species, and we went over some of the morning’s ground again.
I proposed that we focus on the endangered coho, the principal basis for Class A closures in the Klamath Basin, as a useful way to continue the discussion on how we might operate notwithstanding their presence, but the Tribe and Department successfully deflected the Judge into the notion that perhaps each side’s experts should meet about this. Not a lot of progress was made. A further meeting was scheduled for January 23, 2014.
At the end of this shorter session, the Judge took first the Tribe, then the Department, and then Mr. Young and I into his chambers for private discussions. I took the opportunity to stress that the Department has specifically refused, after the hearing, to make any commitment that it wouldn’t just amend the regulations to require a water quality permit, but the Judge was unmoved. We have an important decision to be made as to whether to open up another front in this war through litigation concerning water quality, but my thoughts on that are not appropriately reprinted in a memo that may be publicly circulated.
At Mr. Young’s suggestion, the Court will issue an order requiring at least one telephone conference to continue working on the checklist between now and January 23rd.
James L. Buchal
Murphy & Buchal LLP
3425 SE Yamhill Street, Suite 100
Portland, OR 97214
Phone: 503-227-1011
Fax: 503-573-1939
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