UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION

In the Matter of the Application of: ) ) Project No. 2082-062 PACIFICORP ) (Klamath Project) ______________________________________ ) ) Project No. 14803-000 KLAMATH RIVER ) (Lower Klamath Project) RENEWAL CORPORATION ) ______________________________________ ) ) Klamath Hydroelectric Project, in ) Southern Oregon/Northern ) California – Amendment and ) Partial Transfer of License ) _______________________________________ )


MOTION TO DISMISS

Pursuant to Rule 214 of the Federal Energy Regulatory Commission’s (“FERC”)
Rules of Practice and Procedure, 18 C.F.R. § 385.214, Siskiyou County Water Users
Association (“SCWUA”), hereby moves to dismiss the application for transfer filed by
PacifiCorp and the Klamath River Renewal Corporation (“KRRC”), on the ground that
Congress has not consented to the transfer, and that an arguable mechanism of the
expression of such consent, the Klamath River Compact (the “Compact”), has not been
invoked. Absent Congressional consent, the KRRC is not qualified to receive the license.
Put another way, it would be unconstitutional and a violation of federal law for FERC to

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approve the transfer, as it would constitute FERC facilitating an evasion of the
jurisdiction of the Compact.
This motion is supported by the Declaration of Richard Marshall and Bob Rice,
filed herewith.
Argument
The Constitution provides: "No State shall, without the Consent of Congress...
enter into any Agreement or Compact with another State." U.S. Const. Art. I, § 1, cl. 3.
This provision is known as the Compact Clause. On August 30, 1957, though Public
Law 85-222, Congress gave its consent to the Compact, which is reproduced in the bill
and the Statutes at Large (71 Stat. 497-508.1)
The Compact has extremely broad purposes, including:
“To facilitate and promote the orderly, integrated, and comprehensive development, use, conservation and control [of the waters resources of the Klamath Basin] for various purposes, including, among others, . . . the use of water for industrial purposes and hydroelectric production”. (71 Stat. 497.)

It establishes “prescribed relationships between beneficial uses of water” and provides for
certain “preferential rights”. (Id.) Pertinent to this motion, Article IV declares that:
“It shall be the objective of each state, in the formulation and execution of plans for the distribution and use of the waters of the Klamath River Basin, to provide for the most efficient use of available power head and its economic integration with the distribution and use of water and lowest power rates which may be reasonable for irrigation and drainage pumping, including pumping from wells.”

As the Supreme Court has explained, “where Congress has authorized the States
to enter into a cooperative agreement, and where the subject matter of that agreement is
an appropriate subject for congressional legislation, the consent of Congress transforms
1 Available at https://www.gpo.gov/fdsys/pkg/STATUTE-71/pdf/STATUTE-71Pg497.pdf (accessed 4/16/18).

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the States' agreement into federal law under the Compact Clause.” Cuyler v. Adams, 449
U.S. 433, 441 (1981). There is no question that the Compact addresses subjects, such as
water resource development, that are plainly appropriate for congressional legislation.
The Compact is therefore federal law that must be addressed in this proceeding.
As FERC’s order of March 15, 2018 recognizes, the multiparty Klamath River
Hydroelectric Settlement Agreement reached in November 2008 required Congressional
legislation to implement, which was not obtained. The April 6, 2016 Amended Klamath
River Hydroelectric Settlement Agreement (“Amended Settlement Agreement”) has been
filed with, but not approved by FERC. It purports to provide for transfer of the license to
the KRRC, but it too has not been approved by Congress. The Amended Settlement
Agreement, by its terms, constitutes an agreement between California, Oregon and other
parties, the implementation of which is barred by federal law. Federal law does not allow
the Amended Settlement Agreement parties to evade the requirement for Congressional
consent for the momentous and ill-considered policies they advocate.
Congressional approval of the Compact created federal law that now requires
decisionmaking by a specific entity, the Klamath River Compact Commission (the
“Compact Commission”). See also James v. Dravo Contracting Co., 302 U.S. 134,
148(1937) (“It can hardly be doubted that in giving consent [to a compact] Congress may
impose conditions”). Unless and until Congress passes legislation endorsing Klamath
River dam removal, its consent can only be obtained, if at all, through lawful
decisionmaking through the specific procedures required of the Compact.
Specifically, the Compact Commission includes a representative of the United
States who serves as chairman of the Commission. (71 Stat. 502.) It is the Compact

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Commission’s responsibility, though public meetings, to “administer this compact”. (Id.)
The Commission’s exercise of powers is conditioned on the ability of “any interested
party [to] have the opportunity to present his views on the proposed action” before
Commission action, after “reasonable” advance notice of the action. (Id. at 505.)
Decisionmaking by the compact entity is thus nothing like the negotiation of a
settlement agreement without such opportunity for public comment. The Supreme Court
has confirmed that the requirement of decisionmaking by a compact entity involves a
different sort of “political accountability;”
“An interstate compact, by its very nature, shifts a part of a authority to another state or states, or to the agency the several states jointly create to run the compact. Such an agency under the control of special interests or gubernatorially appointed representatives is two or more steps removed from popular control, or even of control by a local government."

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 42 (1994) (quoting M. Ridgeway,
Interstate Compacts: A Question of Federalism 300 (1971)). Whether or not the
Compact Commission could approve the Amended Settlement Agreement,2 federal law
as set forth in P.L. 88-222 requires at least that the Compact Commission exercise its
authority on that question before decisions concerning the Klamath River Basin within
the purview of the Compact Commission may proceed.
Congress has expressly declined to endorse the dam removal plan, which is
directly contrary to the Congressional interest in “efficient use of the available power
head” adopted in P.L. 88-222. Congressional consent to the Amended Settlement
2 It is SCWUA’s view that (1) Article IV of the Compact would require express Congressional approval for any dam removal on the Klamath River, because dam removal is so inimical to the Compact’s purposes as adopted by Congress; and (2) the actions of certain federal agencies in requiring uneconomic, arbitrary and capricious fish passage measures violated federal law.

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Agreement cannot be obtained as a matter of federal law, without Compact Commission
review of the anti-development efforts represented by that Amended Settlement
Agreement, including approval of the KRRC as the entity to engage in that wasteful and
destructive effort.
As set forth in the accompanying Declaration of Richard Marshall and Bob Rice,
the Compact Commission has never taken any action with respect to the Amended
Settlement Agreement, dam removal, or the KRRC. Rather, the States of California and
Oregon (along with other parties) have evaded the requirements of P.L. 88-222 for public
decisionmaking by the Compact, and have instead entered into the Amended Settlement
Agreement, which removes the most significant resource development decisions in the
Klamath River Basin from Compact control.
Pursuant to 18 C.F.R. § 9.2, each application for approval of transfer must “set
forth in appropriate detail the qualifications of the transferee to hold such license . . .”.
Unless the Compact Commission takes action, neither KRRC nor any other entity can
possibly qualify as the transferee of any license.3 For FERC to take action in furtherance
of the Amended Settlement Agreement before the requisite Congressional consent would
violate P.L. 88-222 and the Compact Clause.
Put another way, for FERC to award the license to the KRRC, when the Compact
Commission has not considered the joint state action represented by the KRRC, would
invade the jurisdiction of the Compact Commission. Cf. American Bankers Ass'n v. SEC,
804 F.2d 739, 755 (D.C. Cir. 1986). At the least, as a matter of comity, FERC should
3 Section 3 of the KRRC Articles of Incorporation also states that the Board of Directors shall not engage in any activities that are unlawful under applicable Federal and or State laws. Action by KRRC absent Compact approval is unlawful as a matter of federal law.

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defer action unless and until the Compact Commission acts to approve or authorize the
Amended Settlement Agreement and plans of KRRC.
Conclusion
For the foregoing reasons, FERC should dismiss the transfer proceedings.
Dated: April 24, 2017.
Respectfully submitted,
/s/ James L. Buchal James L. Buchal, CA Bar No. 258128 Murphy & Buchal LLP 3425 SE Yamhill Street, Suite 100 Portland, OR 97214 Phone: 503-227-1011 Fax: 503-319-8200 E-mail: jbuchal@mbllp.com

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CERTIFICATE OF SERVICE

I am a citizen of the United States and a resident of the State of Oregon. I am
over 18 years of age and not a party to this action. My business address is 3425 S.E.
Yamhill Street, Suite 100, Portland, OR 97214.
I certify that on April 24, 2018, the foregoing Motion to Dismiss will be
electronically mailed to all parties enrolled to receive such notice. I further certify that I
transmitted by First Class mail the foregoing Motion to Dismiss to those parties not
enrolled for such electronic service as reflected on the Service List for the above
captioned matters.

/s/ Carole Caldwell Carole A. Caldwell
 

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