A recent visit to the White Salmon area by Nora Mead Brownell, a commissioner with the Federal Energy Regulatory Commission (FERC), has spawned a legal challenge from Klickitat and Skamania counties.
Brownell came to the area in mid-April to get a first-hand look at Condit Dam, one of many Northwest dams subject to relicensing proceedings by FERC. While visiting, Brownell met with tribal leaders and Bureau of Indian Affairs officials who support a plan to remove Condit Dam, owned by PacifiCorp, in 2006.
Brownell's visit to Condit Dam was part of a Northwest tour that included stops elsewhere in Washington as well as in Idaho.
A legal motion filed by the two counties charges that Brownell's visit represents "ex parte communications" because "prohibited off-the-record communications" took place.
The counties are seeking to have sanctions imposed against the Columbia River Inter-Tribal Fish Commission (CRITFC) and its tribal members, as well as the U.S. Department of the Interior.
The document was submitted and signed by Klickitat County Prosecuting Attorney Timothy O'Neill and Skamania County Prosecuting Attorney Peter Banks, and was dated May 6.
Skamania County and Klickitat County are both intervenors in the Condit Dam decision process.
O'Neill said he was concerned about the contact with tribal representatives who are proponents of removing Condit Dam.
"She was, or could have been, lobbied. She shouldn't have had ex parte contact with them," O'Neill said.
O'Neill added that his office was not informed in advance about Brownell's visit.
"I didn't know about it until I saw it in the newspaper," he explained.
Kevin Cadden, director of external affairs for FERC, dismissed the counties' complaint as "frivolous."
"It's silly, frankly," Cadden said. "The commissioners are allowed to talk to the people. If we didn't talk to the people, we wouldn't be doing our job."
Cadden said FERC's legal representatives would respond, but he gave no date for the response.
Jonathan Modie, a spokesperson for CRITFC, said the visit was being mischaracterized by the county.
"My understanding was that Don Sampson [executive director of CRITFC] had gone to Washington, D.C., to testify before FERC in some way and he basically said, `come out and see for yourself,'" Modie explained. "And that's exactly what the commissioner did. FERC is dealing with a lot of relicensing issues with a lot of the dams, and she wanted to do her homework. It was a fact-finding mission on her part. As far as a formal invite, I don't think so."
Modie added that the tribes treated her as they would any important guest.
"She was a VIP," Modie said.
When asked to comment on the case, Banks suggested directing all questions to O'Neill.
"His office is much more directly involved," Banks said. "We're just kind of riding on their coattails. For budgetary reasons, they [Klickitat County] have the ability to bring in outside counsel and we didn't, so Klickitat County is the driving force."
The counties requested that CRITFC, the Department of the Interior, and the Yakama Nation be banned from "all further participation in this proceeding" due to what the legal document labeled as "flagrant" violations.
The FERC commissioners are currently reviewing an application from Portland utility PacifiCorp to amend its license proposal and for approval of its "offer of settlement" regarding its Condit Hydro-electric facility on the White Salmon River.
The legal filing refers to an article published in The Enterprise on April 17, 2003, as evidence of the ex parte communication, and the article is recognized as "Attachment A" in the brief.
The 13-page legal motion quotes several passages from the article, and states that "the off-the record communications were prohibited and must be disclosed."
The motion by the counties contends that the visit was arranged by CRITFC, a party to the Condit Dam proceedings, "specifically to create an opportunity for CRITFC and its member tribes to underscore for Commissioner Brownell the importance to them of the values they contend would be enhanced with the removal of the project [Condit Dam] and thus influence her decision on the issue of whether the Amendment/Settlement should be approved and Condit removed," read one excerpt.
According to the counties, the communications with Brownell were off the record because they were made without any prior notice to the counties and other parties to the proceeding, and without the opportunity for the counties and other parties to be present.
"As the excerpts from The Enterprise
article disclose, representatives of the CRITFC and the tribes were attempting in their communications with Commissioner Brownell to emphasize the importance of these alleged benefits to them so as to influence Commissioner Brownell ..."
Specifically, the counties have asked FERC to order Brownell to disclose fully all her communications during the April visit to White Salmon, including:
The names and affiliations of all persons present during Commissioner Brownell's visit to the Condit area;
Summaries if all oral communications made to Commissioner Brownell during her four-day visit;
Copies of all written documents and materials provided to Brownell during her four-day visit, including all written agendas and itineraries regarding the visit;
A listing of the areas visited by Commissioner Brownell during her visit.
Modie said he wasn't concerned about fallout from the legal action.
"It seems like a scare tactic on the part of the counties," Modie said. "It's just lawyer stuff. That's what attorneys do."
However, Modie rejected any move to have the tribes excluded from the process.
"To say the tribes don't have a right to be part of this process is to say the dams have had no effect on fisheries, and that's completely wrong," Modie said. "The tribes are going to participate in every way they can. The tribes deserve that."
O'Neill said that as of Monday (May 19), there had been no response from FERC or the tribes involved.
"Since it is an administrative filing, they will probably have to file a response in a timely manner -- within a few weeks," O'Neill said. "I'm sure they will respond in writing."