Friday, January 14, 2011

How Low Can They Go?

After a while, one begins to expect the bad guys to cheat at every opportunity.

We Western Shoshone were invited on 1/12/2011 to a meeting with the Bureau of Land Management (BLM), concerning Native American cultural, historical, and religious concerns in the construction of the Southern Nevada Water Authority (SNWA) Ground Water Development Project (watergrab).

Of concern was the Draft Environmental Impact Statement (DEIS).

A number of subjects were covered – mostly updates. We appreciate being kept up to date. And I personally believe that the local BLM officials are on our side. But as time went by, it became more and more apparent that someone (above the BLM representatives attending) wants this project to happen – and is willing to stack the deck in favor of SNWA.

Case in point; the BLM publication “Right-of-Way Project Update” (December 2010 – Newsletter No. 6) lists nine different “Alternatives,” but somehow overlooked the do-nothing (don't drain Nevada) alternative.

Moreover; It took years to develop the hydrological model to assess the damage the watergrab will have on Rural Nevada and Utah, while we get ninety days to review it.

And it is estimated that there will be somewhere near three thousand pages to review in the DEIS, while we only get ninety days to review and write comments on it.

But the real fox-in-the-hen-house moment came when Washington DC attorney John Clark handed us a Programmatic Agreement to sign.

This Programmatic Agreement was the only actual item that we would be asked to act upon that day. So, it isn't unreasonable to assume that this was the main reason for the meeting.

Washington DC attorney John Clark introduced himself as an authority on historic preservation and proceeded to inform us on BLM responsibilities. He did happen to mention that SNWA was paying his bills, but he reassured us that his priority was protecting our traditional cultural properties.

And then he started to explain this Programmatic Agreement. Let's just say it became easy to fall asleep during his explanation. Most of what he said concerned the procedures the BLM would go through to “protect” us. The explanation was tedious. But I paid attention and tried to read along as he spoke.

The draft of the Programmatic Agreement had been handed out at the meeting. This was the first time we had seen it. Most of it looked like basic procedural blah blah blah. But hidden in it was what looked to me like a trap. So, after his presentation, I asked about it.

To the best of my recollection, this is what we said:

Rick Spilsbury; “I'm not a lawyer, and I don't know bureaucrat-speak, but something about this Programmatic Agreement just doesn't look right. For example; right at the top, the agreement is between the DOI, the BLM, the SHPO, etc. etc. including SNWA, but the only place the Tribes are mentioned is back where we sign as “Concurring Parties.”

And if there is a dispute, is says here in the Dispute Resolution section that the BLM Nevada State Director will have authority to make a “final determination.”

Washington DC attorney John Clark; “Well, that's just the way these issues are typically handled.” (Not his exact words, but close.)

Rick Spilsbury; “It looks to me like this is just going to eliminate our opportunity to sue.”

Washington DC attorney John Clark; “Oh, you can still sue.”

(Note: Of course, we can still sue; but our odds of winning would be greatly reduced if we have signed our rights away.)

Rick Spilsbury; “I just don't get this. What's in it for us?”

Washington DC attorney John Clark; “It's the law that we follow these procedures.” (More was said. However, it wasn't particularly relevant. It felt like he was trying to change the subject.)

(Note: If the law is so concrete, what is the point of us signing this agreement?)

Rick Spilsbury; “So, what if we don't sign this agreement?”

Washington DC attorney John Clark; “Then they will proceed with this anyway.” (More was said. However, it wasn't particularly relevant. It felt like he was trying to change the subject.)

Essentially, all of these U.S. Government agencies got together and decided how they will do things, and a lawyer paid by SNWA wanted us to just sign away that we agreed to let them handle it for us.

Not no, but NO WAY!

We're not signing any more Treaties.

The most telling part of this document is the Dispute Resolution section. As I mentioned earlier, final determination for any objection was written into the fine print (which Washington DC attorney John Clark conspicuously passed over). This document gave the BLM Nevada State Director final say on most issues. How convenient...

Allow me to remind you that we were told it was the BLM Nevada State Director who agreed to the Stipulated Agreement with SNWA that led to the BLM dropping all its Protests to the State water applications for the watergrab.


Protests from the BLM to the State Engineer could have reduced the amount of water approved for export from BLM land. The Stipulated Agreement eliminated any possibility of the BLM warning the Nevada State Engineer that the environmental effects of draining a river of water from a place that has no rivers just might be catastrophic.

And the Stipulated Agreement doesn't have any teeth. The Stipulated Agreement doesn't have any actual real world triggers. SNWA agrees to “monitor and mitigate.” So what? Everything else is going to have to be determined in court. Dan Netcher, from the BLM, claimed that this Stipulated Agreement was the only way the BLM would have any control over what happened later – if the State Engineer permitted the watergrab. There may be some merit to this argument, but the BLM sure could have agreed to something with more substance.

And what did the BLM gain by stipulating out? They can complain later – that's it. It was a give-away – with lots of fancy words to make it sound like they were being responsible.

(Oh, and one more thing; since the Nevada State Supreme Court has forced SNWA back to square one because the Nevada State Engineer favored them so much over the citizens of Nevada, the BLM quietly stipulated out again!)

Up until the end of 2010, the BLM Nevada State Director has been Ron Wenker. It is most likely he has been behind the Stipulated Agreements with the BLM (though the order to stipulate out came from the Department of the Interior). It will be interesting to see whether he ends up with a “job” at SNWA.

This draft Programmatic Agreement states that Amy Lueders is the acting BLM Nevada State Director. Is she to be trusted? I didn't vote for her. And since she is just “acting” Director, we don't really know who will end up making final determinations.

If I were a paranoid conspiracy nut, I might suspect that SNWA has offered someone in the Department of Interior (and/or higher up in the BLM) a “job.” The revolving door between Government regulators and private industry has been spinning quite often lately. This may be no different. We need to watch very closely who ends up with the position of BLM Nevada State Director.

And we definitely DO NOT want to sign anything that just agrees to let them handle it.

You know; if SNWA had spent the money they have spent on trying to lie, cheat, and steal this water from Native Americans, Rural Nevadans, Americans, the wildlife that needs this water, and future generations that may need this water far more than Southern Nevada developers; they would have already built an offshore desalination plant and been able to trade that water for more water out of the Colorado River. Or they could have used the money to reform Nevada water law to save some water for the future.

I guess scheming minds rarely think about what's best for us all.


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