html xmlns="" xml:lang="en" lang="en"> From the archives: The tracks of destructive careless people.

Thursday, June 28, 2007

The tracks of destructive careless people.

The Washington Post exposed how Dick Cheney secretly maneuvered to overturn an agency decision to keep water for farmers, and the result was the largest fish kill ever. People are justifiably pissed, mostly at the sheer cynicism of his manipulations. He personally interfered to reverse a decision that was made in public to balance the laws of our country, used the agencies to get Republican politicians elected, and the results were visible devastation. Years later, that particular scheme is still reverberating; I want to illustrate some of the consequences of Cheney’s decision that a close election in Oregon meant that Republican farmers would get water.

Cheney’s manipulations had costs. It weakened the Endangered Species Act, by introducing a new, unprecedented level of review for the Fish and Wildlife Service’s Biological Opinion. It discredited agency science and the concept of governing based on objective science. Longtime Fish and Wildlife Service staff quit in protest, staff that had local knowledge and had served conscientiously enough to get promoted in an extremely contentious region. It made all watchers more cynical about American governance.


At the risk of sounding like a dirty hippie, the Klamath River salmon run has intrinsic value. A salmon river run is a beautiful and structured system that created and feeds living things. It is made of living things, fish with genetic continuity in that region for millennia, big leaping fish. They should not be suffocated and drowned in warm water by the tens of thousands, their bodies left to rot, for the political advancement of a man three thousand miles away.

Salmon fishery
The Klamath fish kill shut down the West Coast salmon fishery for two years. When salmon return to the ocean, they mix with other river runs; since the Klamath run was endangered and you can’t tell whether you’re taking a Klamath salmon, all salmon fishing was banned for a year and severely abbreviated the next year. Salmon boats were idled; the season was immediately declared a federal disaster and $10M of federal monies were made available to help salmon fishers through the season. Oregon spent $1M in disaster relief; California made $10.2M available in low interest loans. Smaller governments gave money to salmon fishers; Lincoln County gave $75K to help pay moorage fees. That was the immediate response to closed salmon fishery. Five years later, the federal government has approved another $60.4M in aid to the salmon industry. Cheney’s fish kill cost the feds, Oregon and California about $65M.

One possibility is that the 2002 drought would have cost someone that money. It could have been the farmers, who’d have lost a season’s crop. I don’t know what the Klamath irrigators’ loss would have been. But I do know that Cheney’s decision was a transfer of wealth from the salmon industry to Klamath farmers (indemnified, eventually, by every taxpayer in the country). Maybe that is OK. Maybe that is how the United States wants to allocate wealth. But I am very sure that that decision should have been made in public, and it should have been made in accordance with the laws of our country, and it should not have been made specifically to advance Cheney’s political party in a local election.

Karuk Tribe
We’re spending $65M to make the salmon industry whole, but the group who will not be made whole from the Klamath fish kill is the native Indian tribes. Cheney’s fish kill is just one contributor to the collapse of their native fisheries, but the Karuk are very clear. They do not want money. They want salmon. Their descriptions of the 2002 fish kill are wrenching. They value the Klamath and the salmon in ways we do not, and they are hurt when the salmon are hurt.

They are also injured in ways we can understand. The Karuk Tribes are bringing a novel claim against the dams and fish kills on the Klamath; they’ve created the concept of nutritional justice. When the federal government destroys the healthy food source of a dependent tribe, the ramifications of the switch to a crappy modern diet falls on the tribe. Cheney’s fish kill is only a part of the problem, but because of it, the Karuk are sicker, poorer, more alienated from their ways, sadder.

I keep telling you that these decision matter. They seem banal, how much water an irrigation district gets this year. But these are decisions about who will bear costs and hurt and risk. This decision cost the public $65M; cost salmon fishers two years of sitting on land, terrified for their families and way of life; cost nature a gorgeous indigenous fish run; cost the Karuk suffering and food; cost all of us faith that we are governed by laws and not political power consolidation. It matters that we elect people who believe these decisions should be made with a public balancing and acknowledgment of those costs, according to the laws that our representatives passed. It matters that we hold politicians to these standards and make them accountable for the damage they do. Compared to the War in Iraq, the destruction in the Klamath is trivial. But it isn't nothing, and Cheney hurt us all.


Anonymous Anonymous said...

It's not my way to leave a comment like this, but that is a fantastic post.


10:00 AM  
Anonymous quirkybook said...

Wow. Still processing the Post article, and your own post. Thanks so much for sharing.

I'm particularly interested in the role that the National Academies' scientific panel report had in this whole debacle. The National Academies is not a government agency -- it is a nonprofit whose primary client is the government -- and my previous thought was that it was non-governmental precisely to prevent this kind of thing from happening. Was Cheney actually rolling the dice with them, or was there something bigger going on?

10:13 AM  
Anonymous Anonymous said...

This sums it up.
Dick Cheney takes over USAF base. Launches nuclear strike

10:35 AM  
Blogger Megan said...

Qbook - that is one of the most interesting parts of this. I'm in meetings all day, but I want to keep thinking about it and hopefully I'll write that up.

A4 - glad you liked it. But you don't get to say so.

11:11 AM  
Anonymous Anonymous said...

Well, I'm sure I would have liked it less if I had read the Post article.


11:42 AM  
Anonymous Anonymous said...

Meggie, what a post. It is very disturbing on many levels.

First of all, why do you start off with such a reckless assertion as: "largest fish kill ever." You have no way of proving that. Not even close. I checked the web and that assertion is repeated on lots of blogs and other posts across the web, but nobody gives a single jot of factual support for the assertion. And since you are an expert and should know better, I can only imagine that you said something that reckless because you were driven by anger. I don't think that's good. But perhaps it is understandable in at least as far as most of the environmental movement seems to be fundamentally motivated by anger and self-righteous resentment.

But let us continue. 10,000 farmers make up a bucket brigade because they are about to have their water turned off and you appear to blithely dismiss their predicament because you think that the "law" was clearly against them?

For whose benefit do we set up the laws? Did anyone who set up the EPA back in the Nixon administration really envision a day when it would be a fish run vs. tens of thousands of farmers? And if so, did they think: "Of course we'll side with the fish."

I doubt it. And if they did, they were silly and misguided.
In fact, our entire edifice of environmental protections is silly because it takes power and control away from those most directly affected. What do a bunch of scientists on some panel of experts know about the harm that their decisions will costs to tens of thousands of farmers? Do they even think about it? Did they get Ph.D.s in humanistic studies or in things like fisheries management? With whom--or what--will they side given their backgrounds and training and biases? Probably not the farmers. And is that fair? Is that right? Why set up a system that is biased towards protecting the fish and ignoring the farmers?

And that gets us to another logical error. You start going on and on about the economic damage done to the fishermen and to the local tribe. But that is not fair. Why? Because the part of the law that you love doesn’t care about them either. It doesn’t care about the farmers, or the fishermen, or the tribe. Only the fish. They have to have their water. So you cannot with any consistency or fairness mention that the fishermen and the tribe were hurt by denying the water to the fish—implying that we should take into account damage to humans—and then turn around and deny the same sort of care for the harm that would have befallen the farmers if they had been denied the water. For you to bring into the argument the costs falling to the fishermen and the tribe is for you to have to allow that costs falling on the farmers also matter. You are actually weakening your case by bringing up costs falling on people. For if costs falling on people matter, then one has to consider the plight of the farmers.
But, of course, that would go against everything you seem to like about the system as it normally functions: that it is willing to rule in favor of the fish in a black and white way to keep them alive no matter what the costs to human beings.

Next, the Post article could not point to a single jot of law breaking on the part of Cheney or anyone else. Not one. If anything, he was eager to follow the laws and look into all possible legal ways of getting the farmers their water.

To that behavior I say: God Bless America. I am thankful that this is a country where the government actually does sometimes respond to people in need. And where the government is nice enough to think about economic impacts on people and their livelihoods! And where I have a fighting chance of getting some H2O even if it means that a lot fish have to die. That's right---people matter, too. Not just fish. And not just “The Environment” as some pleasant abstraction.

In addition, after your post on Bureaucrats the other day, this post is very disturbing. You said that a lot of experts quit in response to Cheney getting things changed. But if Cheney followed the law, doesn't that conflict with your previous posting about bureaucrats loving process? Cheney followed process. So shouldn't the bureaucrats love it?

Of course not. They don't want process. They want policy decided in the ways that they---an unelected, unresponsive, and civil-service-protected elite---want done. And if they don't get their way, they quit.

So this makes the final part of your posting even more disturbing. You basically argue that people make policy. Or, rather, that you want our bureaucracies filled with a certian type of like-minded person who will use the tools of government to foist down on people whatever you (and they, since they will think like you) think best. I think that's awful. I want a government that is flexible and responsive and not run by a bunch of unaccountable bureaucrats.

In fact, you and the Post article point out that this was all about political pressure--that Cheney wanted to win elections. That's not a bad thing. That's the whole point of democracy. We've set up a system where those in charge have an incentive--reelection--that will help to align their interests with our own. You don't seem to want that. Rather, you want a set of processes that will be managed and run by "experts" accountable to nobody but their own senses of right and wrong.

That scares me and reminds me of Hayek's chapter in The Road to Serfdom where he talks about how nearly all of the German scientific elite lined up quite voluntarily behind the Third Reich. They didn't do it because they were Nazis. They didn't do it because they were Facists. They did it because they believed that they could be part of a government that would allow them to run society "scientifically" and would let them run with things without having to convince a bunch of poor benighted non-scientist common people (i.e. voters). Essentially, what they wanted was a combination of power and non-accountability.

You seem to be advocating the same thing. Are you?

12:11 PM  
Anonymous quirkybook said...

12:11 pm Anonymous, you said:

So you cannot with any consistency or fairness mention that the fishermen and the tribe were hurt by denying the water to the fish—implying that we should take into account damage to humans—and then turn around and deny the same sort of care for the harm that would have befallen the farmers if they had been denied the water.

I don't think that Megan did this; at least, that's not how I interpreted her based on the second paragraph under "Salmon fishery," where she states that it's the process that she objected to, not explicitly the objectives of the decision-makers.

1:35 PM  
Blogger Tom said...


I wonder are you considering that the continued existence of [animal Y or plant Y protected by conservation legislation] may benefit many people?

It would seem important to consider that in forming an opinion.

What I'm getting at is that there are many, many, parties to this dispute: commercial, sport, and traditional fishermen, farmers, those in some way or another dependent on other animals in the same ecosystem.

When you cast the discussion as "fish vs. people," you miss the point that considering the decisions under scrutiny as "people vs. some other people" is important.

1:45 PM  
Anonymous tony said...

hey, Godwin's Law in 6 comments! Woot!

1:47 PM  
Anonymous margie said...

I don't think choosing an endangered fish over farmers is at all "silly". I don't understand why farmers have a greater claim to their livelihood than fishermen or native american tribes. These endangered fish are a natural resource that can not be replaced (not even with hatchery fish).
The result of the fish kill (largest ever or not) is that the fishery was shut down or drastically restricted for more than one year and could be affected for a much longer period, whereas the farmers would have lost only 1 year's crop. In fact the farmers would likely have not even lost a full year's crop since they get multiple plantings in during a year. I'd much rather the government compensate the farmers for their loss rather than the fishermen. Alas, there really is no way to compensate the fish for their loss. That year class of fish on the Klamath may never recover its numbers so we'll see diminished fish runs every 3-4 years due to the fish kill.

2:45 PM  
Anonymous D said...

how about if I look at this from the worng way, because I can't figure out where to get the figures... and I think this Q? is something that Megan is uniqely able to find...

Was the water released to the farmers water OWED to them based on their water rights, and then trumped by the fish laws? Or was the water IN ADDITION and above their water rights in reaction to the drought.

That changes the complexion of the action a great deal. And not at all.

Anon. 12:11 this is not clearly the fish versus farmers until you can tell me farmer rights to water were taken away.

If farmers needed MORE water than usual, and the price of that was to kill fish, than this was a purely craven political act [I'll explain how it was anyway, later]

If the farmers needed their normal allocation in a draught year, and they were in competition with the fish FOR that same water, then the answer is difficult but it is out there.

A fish run like that is pretty irreplaceable, or at least it is impacted for years with a kill like that. Farmers too, but since they are working for money, you could just give them money. Fish don't live without water. So that is the answer. It has probably cost more in public money to try and fix this, then it would have cost, if the farmers had just been paid in public money to till their crop under.

But a republican can't do that, can he? Except for the LAW that allows him to say, "The law requires the fish have water, so we will simply have to help the farmers out in another way..."

Situation resolved. Except for where you haven't shown your political muscle by shutting everyone up and doing what you WANT to do.

5:03 PM  
Anonymous Anonymous said...

I don't necessarily agree with anon 10:53, but if we include the people who benefit from the fish (which we absolutely should) It's also important to take into account the people who benefit from the farmers. A year's worth of crops from 10,000 farms is a lot of product, and all of that goes somewhere to someone's benefit.

I don't have any data on this, but I think its reasonable to believe those costs were measured in the decision.

5:16 PM  
Anonymous Francis said...

hey, the intersection of the Endangered Species Act and federal water law. One of my favorite topics.

a few threshold points:

much like the Colorado River, the Klamath is way overallocated. By the time you divvy up water among endangered species, commercial fisheries, Tribes and farmers, you need something like 250% of actual flows.

joining a long and dishonorable tradition of environmental degradation and mistreatment of Tribes, the Klamath diversion projects should never have been built. But farm interests wield grossly disproportionate power in DC to their economic contribution to society and now we need to figure out what to do.

One likely answer, like on the west side of the Central Valley of California, is that the government will buy out farmers' land, at a price which assumes reliable water.

this is, of course, financially insane for the taxpayer. First we pay to build the project. Then we pay for emergencies caused by the overallocation. Then we pay again to buy peace on the river. But such is the clout of farm interests.

(cane sugar farming in Florida is even more insane, but we can cover that another day.)

Something clearly went very wrong in the NAS review of the bio. opinion. The State of California, which took the side of the fish, has argued, pretty persuasively in my view, that what the NAS report actually said was that there was no evidence to support a change of flows in either direction.

yet when the drought hit and the farmers went looking for relief, NMFS relied on the no evidence conclusion to reduce flows which then contributed to the kill.

the bio opinion which led to the fish kill was ultimately invalidated, which is happening far too often out here in the West. According to one scientist who apparently has a whistleblower lawsuit pending, senior administration officials rigged the conclusion.

one thing i've learned in the last several years is that if Executive Branch officials don't want to obey the law, by the time the judiciary catches up and reins them in they can do enormous damage.

respect for the rule of law really truly effing matters.

5:54 PM  
Anonymous Francis said...

for anon at 12:11, d, and anyone else interested, a quick lesson in the law.

Bu_Rec (the Bureau of R e c l a m a t i o n) operates the Klamath irrigation project for the benefit of a small group of farmers.

A different federal agency (well, two actually -- the US Fish and Wildlife Service and National Marine Fisheries Service -- but this gets unnecessarily complicated) found that the federal Endangered Species Act protected certain fish in the river.

Under FESA, Bu_Rec has to consult with USFWS/NMFS to find out whether Bu_Rec's operation of the Klamath irrigation project is likely to jeopardize the listed species. USFWS/NMFS then is obliged to prepare a biological opinion analyzing the impact of the federal action on the listed species and setting out the criteria under which the action agency can proceed.

The 2001 bio opinion allowed for decreased flows in the river in the case of drought as to meet minimum demand for farmers. When this happened, lots of fish died.

This bio opinion was later invalidated in a court of law as being prepared in an arbitrary and capricious manner.

Keep in mind that federal courts are usually extremely deferential to federal agencies.

6:08 PM  
Anonymous D said...

OK, francis, thanks for the primer, I didn't realize it was federal on both sides...

so could you help me get my poity little mind wrapped around the water rights part of the issue? Do the farmer or irrigation company own senior rights on the river, and how are they diverting it... and would the whole thing have gone away at the FED level if there had been no endagered species. They have had similar kills [with much smaller fish] because of the reservoir lack of releases here in CO, but I think none of it bubbled to the FED level, just state...

The other sad thing is that this will only get worse as population continues to shift west, and water compacts drawn in a very wet year, can't work in a normal drought cycle...

6:45 PM  
Anonymous hc said...

I like the way you laid out all the ways in which this reverberated, but I just do not see this is as a good example of Cheney being destructive or careless.

From the article, he didn't do anything more than express strong interest and get the NAS report rolling. It would be easy to believe that he did do more "leaving no tracks," but that's all. Is there anything on him influencing the NAS draft report, or in minimizing the NMFS criticism of the draft report when it might have made a difference?

Like quirkybook, I look forward to your writeup on how you think that NAS report came out as it did.

9:10 PM  
Anonymous Anonymous said...

d, I'm no expert in Oregon/Calif water law, but when I worked for the Water Rights Bureau in Montana (20 years ago), we had a BuRec project in my area, and (a) the US had a single right for the entire project, dating from the inception of the project; (b) this was relatively junior, since much settlement had taken place before the Feds got into the business; and (c) the Feds had their own system for allocating within the project -- even without ESA issues, there is a federal role to play, but it's the simpler role of water manager. This I think responds to all of your questions.

What's left, of course, is the ESA question. The ESA, as a federal statute, preempts state water law (unless it says it doesn't -- and I'm not aware that it does) by operation of Art. VI of the Constitution. So endangered species trumps seniority of appropriation.


9:44 PM  
Anonymous Francis said...


the current question on the relationship between the ESA and state water contracts is whether a cut in water delivery pursuant to ESA compliance gives rise to a regulatory taking action against the action federal agency.

the answer, for now, is that it depends on the judge and the contract, but most likely no.

p.s.: are you the charleycarp who comments at ObsidianWings pretty regularly?

11:48 AM  
Anonymous Anonymous said...


Sorry to delay. Yes. Too lazy to type the full handle.


8:55 PM  

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