How those I disagree with get their lands transfer and how those I agree with get their dams removed are in the same ballpark. Congress. No court can order the removal of those dams. No court can transfer federal lands to the states. Congress, however, can do either of them or continue to choose to do neither of them, or pick one to do and not the other.
As I have written on numerous occasions, while I support legal challenges to the various illegal federal salmon recovery plans, known as the BiOp, I know they are merely a series of skirmishes that will not settle the outcome of this political battle. That has to happen in Congress.
Taxpayers and ratepayers have spent $14 billion on failed mitigation for fish and wildlife due to the hydrosystem in the Columbia/Snake Basin. They spent about $800 million in 2014.
A new study by the Northwest Energy Coalition found that removing the four dams would hardly be noticed by utility customers who would pay about a dollar more per month. You can find that study here and here. The first link is to a press release about the study and second goes directly to the study, which can also be accessed through the press release. Are wild salmon and steelhead and Pacific lamprey for that matter worth $12 a year to each utility customer in this region? Obviously, I hope so.
If you look farther down the road, you have to realize that the $800 million we spend now annually on mitigation for those dams would have to decrease quite a bit, not completely because there would still be an intact hydrosystem upstream on the Snake in Hells Canyon and up and downstream on the Columbia River, but there should be a real huge savings realized here.
We were recently told that the lower Snake dams produce $200 million in electricity and allow for the transport of $1.5 billion in goods by the Walla Walla District Corps Commander. He erroneously reported the dams only cost $62 million per year, rather than $269 million and he also neglected to point out that his own agency classifies the lower Snake River as a "waterway of negligible use."
He also did not mention the necessary turbine maintenance that has begun on one of the lower Snake dams, They are spending $91 million on three turbines now. There are 21 more turbines that would require this maintenance in the next couple of years and if they could hold the line on costs, which they can't, that would be an additional $637 million. They want these dams to last until 2074, so there would be at least one more round of turbine maintenance in the future that would cost something far north of $728 million.
Another problem with the dams and climate change and foreseeable conditions is the need to dredge the lower Snake River. When the Corps came out with its dredge plan, environmentalists said it would cost far more than what the Corps said the dredging would cost. I believe environmentalists actually pegged the number at about $10 million annually, maybe I'm wrong about that, but the Corps said it would cost $6.7 million and it ended up costing $9.9 million. If they could hold the costs, which they can't, if they dredge like they plan to through 2074, that's $574.2 million in moving sand and sediment. Regardless of how well environmentalists did the math, they were right in saying it would be more costly than the Corps projections. The Corps was off by 48 percent on dredging, which is a core Corps activity. It makes me doubt most prognostications from the Corps, but I lived within 25 miles of the Ohio, Mississippi and Tennessee rivers for a very large part of my life, so I have life experience with Corps math.
Regardless of my continued criticism of Corps math, and of the so-called action agencies and the constant illegal BiOps put forth by administration after administration, the ball that matters lies in the court of Congress (and that's not a legislative court, that's a pun). Congress would have to act for there to be any dam removal on the lower Snake River and therefore we must engage members of Congress in this discussion more than we are presently. If it is an economics debate where all the cards are on the table, we win. And clearly, this is an economics debate (only not all the cards are being shown, because they are bluffing) with the added benefit of actually doing something positive for the planet and native and wild salmonids.
Now, because I don't like the idea of federal lands transfer to the state because I am convinced the states would sell off these lands to the highest bidder, which would lead to a lot of no trespassing signs and far worse--environmental disaster all over the western states, I would like to take the remaining time to squash this silly notion that federal lands transfer can be achieved through the courts. Cliff Notes for those who hate reading, I am of the opinion it can't be achieved through the courts.
You need to pay attention to Article 4, Section 3 of the U.S. Constitution, which says, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
For those of you who followed the insurrection in Oregon, those Bundy boys and ilk apparently never read this far into the Constitution, instead making an incoherent argument about Article 1, Section 8, which says, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
To make a long story short in regards to that nonsense in Oregon, the Bundys were as wrong as the state of New Mexico in 1976, when they brought up the same argument, albeit without guns, in this Supreme Court case, Kleppe v. New Mexico, 426 U.S. 529 (1976), and the Bundy boys ran afowl (get it, I even misspelled it so you would) of a couple Malheur specific cases, not to mention the whole armed insurrection deal. Those Malheur cases are the 1902 case French-Glenn Live Stock Company, Plff. in Err., v. Alva Springer and the 1935 case United States v. State of Oregon.
The Utah push for federal lands transfer through the courts (this does not speak to Rep. Bishop or Rep. Labrador, members of Congress, who are actually in the right venue to make this ill-conceived idea happen) relies on the idea of equal sovereignty, if I am to understand the minimal information the media has shared on this.
Let me simply state that I, a layman in law, do not see how any argument for equal sovereignty of the states overrides or is on equal footing with the Supremacy Clause of the U.S. Constitution nor of actual powers reserved for Congress in the U.S. Constitution (please reference Article 4, Section 3 again). Equal sovereignty of the states is a well-trodden legal path. It began when the idea was shot down during the Constitutional Convention by a score of nine states to two. Later, equal sovereignty did find legal footing in the United States, but at no point has the Supreme Court ruled that this equal sovereignty has equal footing or supremacy over powers reserved for Congress and it is clear by Article 4, Section 3 that Congress clearly has the power and the only power to dispense of these lands. That's a short version, there are a number of cases that all build to my short thesis. I think one of the best explanations is located here. It would be precedent setting if the courts would rule for the transfer of these lands and then there would still be the question if the courts actually had that power considering it is reserved for Congress in the Constitution. In other words, lacking an Act of Congress, such a lands transfer would be extra-Constitutional or illegal in my, albeit untrained, legal opinion. This case Utah wants to bring to a court is a blatant waste of taxpayer money in my opinion, what do you think America?