Prepared a legal memorandum "researching [and analyzing] Federal Energy Regulatory Commission ("FERC") jurisdiction," including over the dam sites, and "preparing a list of actions that could be filed against the Environmental Protection Agency, PacifiCorp and FERC" to prevent dam removal.
DISCOVERY BEGINS (August 2017)
United States Motion for Protective Order (TO INTERRUPT BRACE DISCOVERY) (10-1-17)
United States Memorandum of Law in Support of Motion for Protective Order (10-1-17)
Brace Brief in Opposition to United States Motion for a Protective Order (10-11-17)
Evidence of biased media reporting resulting in KID minority Board member and media disclosure of this counsel's unredacted confidential and privileged engagement agreement is available here, here, here, here, here, & here.
Legal counsel and representative of the Siskiyou Country Water Users Association ("SCWUA"), "representing a substantial segment of Siskiyou County water users, both agricultural and residential," significantly concerned that the Federal and State Governments' putsch to remove the four Klamath River Dams without "due process of law" guaranteed by the U.S. Constitution and in contravention of the 1957 Klamath River Basin Compact enacted by Congress and former President Eisenhower into federal law would adversely impact the human health and safety and private property values of county residents.
Most Interior Department monies budgeted for the Klamath Basin during FYs 2012-2017 have been allocated to the BOR, BIA and FWS for purposes of funding Klamath Basin restoration and tribal settlement rather than Klamath Irrigation Project activities.
Three California-based federally recognized tribes filed with the BOR and the NOAA-based National Marine Fisheries Service (NMFS) 60-day notices-of-intent-to-sue under the citizen suit provisions of the Endangered Species Act, alleging that BOR's implementation of the joint 2013 U.S. Fish & Wildlife Service (FWS)-NMFS Biological Opinion governing the levels and flows of the Upper Klamath Lake and the Klamath River resulted in too much Lake water being diverted into the Klamath Irrigation Project rather than the Klamath River, causing coho salmon to contract and die from C Shasta Bacteria. The tribal reservations are located more than 240 miles southwest of Upper Klamath Lake, which suggests that the following tribes are also asserting off-reservation fishing and water rights:
Legal counsel and representative to the County of Siskiyou located in north central California along the border with Oregon, which had sought assistance in preventing the implementation of the then recently (March 2016) Amended Klamath Hydroelectric Settlement Agreement ("Amended KHSA"), "a dam removal pact supported by the Department of the Interior, Oregon and California, and the dams' owner, PacifiCorp" that did not require Congressional approval. The lower portion of the federal Klamath Irrigation Project encompasses the Tulelake Irrigation District ("TID") which is located in Siskiyou County. TID, a quite influential and forceful member of the Klamath Irrigation Project, had taken a contrary and adversarial position against the County of Siskiyou concerning the removal of three federally regulated dams located in Siskiyou County - the Copco 1 and Copco 2 Dams and the Iron Gate Dam, each of which is owned by Warren Buffett's PacifiCorp. In addition, PacifiCorp agreed to remove a fourth dam it owned located in southern Oregon - the John C. Boyle Dam. PacifiCorp had agreed to facilitate dam removal and to promote the execution and implementation of the Amended KHSA without regard to Congress' role in the process, in exchange for being legally "saved harmless" from all possible prospective liability claims raised by third parties. These included inter alia legal claims arising as the result of human health and safety damages resulting from dam deconstruction and the release of the decades'-worth of highly toxic substances residing at the bottom of the dam reservoirs which (had been ignored by USEPA and the Interior Department during the Obama administration) which arguably would render the reservoirs as "point-sources" rather than "non-point sources" of pollution in the Klamath River Basin within the meaning of Section 402 of the Federal Clean Water Act (and possibly Superfund cites under CERCLA that would strip FERC of jurisdiction), and from the significant loss of property values of homes located along the dam reservoirs as they are drained to prepare for their deconstruction and removal.
Since the irrigators ended their intervention effort, the actions taken by the FJBC’s Washington D.C. Counsel at the FERC public hearing proceedings have, once again, caused major concern among Flathead irrigators. These concerns focused, in particular, on the FJBC D.C. Counsel’s failure, in her May 2015 petition, to call for the broadest scope of administrative law judge review possible of Kerr Dam license Article 40(c) issues. These issues concern both the value of the LCB and corresponding irrigator non-consumptive water rights, as well as, the right of the United States to remain the exclusive provider of electricity on the Flathead Indian Reservation, and the terms and conditions of such electricity delivery to reservation irrigator and non-irrigator households, schools, religious institutions, municipalities and businesses, as set forth in a specially prepared legal memorandum.
A compilation of all of the above documents and the ongoing political, legal and economic saga on the Flathead Reservation is available here.
Legal counsel and representative to generations-old farmers holding fee patented land and consumptive water rights on the Flathead Indian Reservation ("FIR") and non-consumptive rights to use the state-owned waters of the Flathead Lake and River. A small group of these farmers and ranchers have courageously concluded that the Flathead Joint Board of Control do not adequately represent the interests of Flathead, Mission and Jocko Valley Irrigation District members, and sought to participate in the U.S. Federal Energy Regulatory Commission ("FERC") "confidential" nonpublic settlement conference proceedings that were convened in lieu of a public hearing to address the terms and conditions for continuing to secure the low-cost block of power (deep-discounted electricity rates) long guaranteed to irrigators and other residents of the FIR by the 1930 and 1985 Kerr Dam FERC licenses, the latter of which has been subject to renegotiation following the conveyance of Kerr Dam to the CSKT during September 2015.
Letter to U.S. Senator Steve Daines (MT-R) concerning the serious reservations of Western States Constitutional Rights, LLC about the Senator's effort to revised tribal forest management provisions of S.2012 now before a House-Senate conference committee. (9-23-16)
In order to ensure the completion of their agenda, the BOR and Oregon and California state officials have pitted Klamath Basin irrigator against irrigator, and have endeavored to marginalize this attorney's efforts to highlight for all KID and Project members and Basin residents the objectionable features of the amended KHSA, the new KPFA and the BOR's one-sided take-it-or-leave-it financing contract which, if executed, could potentially result in the BOR's take-back from the KID of the Project "transferred works" for which it already has daily operations and maintenance ("O&M") responsibilities, thereby preventing the KID from ever acquiring title to them as provided for in the 1954 BOR-KID Agreement. The distribution of the following documents relating to the BOR financing agreement at the KID Special Board Meeting scheduled on March 31, 2016, was unfortunately stymied by BOR officials based in Klamath Falls and Sacramento, California and by recalcitrant Board members with something to hide. These documents include:
United States Motion for Leave to File Reply Brief in Support of United States Motion for Protective Order (10-20-17)
Case # 1-90-cv-00229-SPB (United States v. Brace) (Civil Docket)
CSKT Annual Reports and Quarterly Newsletters Revealing Tribes' Uranium Mill Tailings Cleanup Expertise, Contracting for the Saudi Arabia Military and Embrace of Turkish 'Investment' on Reservation Lands Outreach Activities
In the interest of public transparency, we have made the following documents relating to these issues available online:
BOR Correspondences Reflecting Contract Changes:
USG Motion to Enter Proposed Order and Stipulation Regarding Discovery of Electronically Stored Information and Claims of Privilege or Work Product Protection (6-8-17)
Brace Response to USG Motion to Enter Proposed Order to Regarding Discovery of Electronically Stored Information and Claims of Privilege or Work Product Protection (6-8-17)
Magistrate Judge Baxter Order Opening Up the 1990's Action for New Discovery (6-15-17)*
Legal counsel and representative to small family farmers and a four-generations-old northwestern Pennsylvania farming business the operations of which, during the past 30 years, have been severely diminished in size and value because of the U.S. Environmental Protection Agency's over-enforcement of Sections 301 and 404 of the Federal Clean Water Act ("CWA") against such entities/persons. EPA over-enforcement had been intended to preserve for "public use," without payment of "just compensation," portions of "private farmlands" designated as wetlands deemed "waters of the United States," even though these same wetlands had been previously converted to farmed and farmable drylands in accordance with then applicable law, and such conversion activities had been authorized under a U.S. Department of Agriculture Soil Conservation Service-certified farm "Conservation Plan"." The original 1990 EPA lawsuit ignored USDA-SCS's prior converted cropland designation of such lands and alleged that such conversion activities failed to meet the "normal farming activities" exemption of the CWA. Although the farmers prevailed at the Federal District Court, EPA successfully appealed that ruling to the Third Circuit Court of Appeals.
The current case actually consists of two lawsuits filed by the U.S.Government only 11 days prior to the inauguration of the 45th President of the United States of America. One suit reopened the 1990 case, while the other is a new action. Both are currently before the U.S. District Court for the Western District of Pennsylvania, and have unsuccessfully proceeded through two levels of confidential Alternate Dispute Resolution (mediation). The following filings have been made to-date:
Legislative language KID submitted for S.A. 3288 (Wyden-Merkley) seeking Congressional review and ratification of all agreements into which the Secretary has entered into or will enter into in the future with States, Tribes and other parties (including the Amended KHSA and the KPFA) to promote the objectives of the defunct KBRA and UKBCA and KHSA);
Legislative language guaranteeing C Canal Flume replacement non-reimbursable financing that the current bill language fails to guarantee; and
Inquiries with federal and state officials about issues concerning dam removal.
Pacific Coast Federation of Fishermen's Associations
Institute for Fisheries Resources
The Earthjustice environmental group filed a similar 60-day notice-of-intent-to-sue under the citizen suit provisions of the ESA on behalf of three fisherman conservation groups (July 20, 2016):
9/3/15 - Filed an Emergency Action for Temporary Restraining Order (TRO) and Preliminary Injunction (PI) in the U.S. Federal District Court for the District of Columbia, partially on national security grounds, in an effort to temporarily suspend the illegal conveyance of Kerr Dam to the CSKT
Complaint- Keenan v. Bay, Civil Action No. 1:15-cv-01440
Notice of Filing of Administrative Claims Against the United States (7-7-17)*
Legal counsel and representative to the members of the Klamath Irrigation District ("KID"), one of the largest districts of irrigators of the Klamath Irrigation Project ("Project"), which comprises a system of dams, canals and pumps developed by the U.S. Department of Interior ("DOI")'s Bureau of Reclamation ("BOR") long ago to supply farmers and ranchers in the Klamath Basin with irrigation water for farmlands spanning from southern Oregon to northern California. The KID Board and many district members are very concerned about the ongoing clandestine efforts of the BOR, in cooperation with the DOI's Fish & Wildlife Service ("FWS"), the Federal Energy Regulatory Commission ("FERC"), the U.S. Department of Commerce ("DOC")'s National Oceanic and Atmospheric Administration ("NOAA") and National Marine Fisheries Service ("NMFS"), the Fish & Wildlife and Natural Resources Departments of the States of Oregon and California, the Klamath, Hoopa Valley, Karuk and Yurok Tribes, and Warren Buffet's PacifiCorps to diminish the use of irrigation in the Klamath Basin by: 1) removing four perfectly operational dams in the Lower Basin (John C. Boyle, Copco 1, Copco 2 and Iron Gate); 2) transferring to the BOR full title and control to two other dams in the Upper Basin one of which provides water to the KID which may potentially be curtailed; 3) recognizing the time-immemorial priority of reserved tribal water rights at the expense of irrigator water rights; and by 4) saddling the KID and its members with an exorbitantly high debt burden incident to the KID's forced undertaking of maintenance/replacement of a key Project-related structure known as the "C Canal Flume." The grand plan these federal, state and private actors have developed to curtail irrigation in the Klamath Basin features the execution and implementation of a complex panoply of new and existing federal-state-tribal agreements, including the Klamath Basin Restoration Agreement ("KBRA") (2010), the Upper Klamath Basin Comprehensive Agreement ("UKBCA") (2014), the Klamath Hydroelectric Settlement Agreement ("KHSA") (2010), and the new Klamath Power and Facilities Agreement ("KPFA") (2016) accompanied by proposed congressional legislation (the Merkley-Wyden bill), which individually and collectively overlook, ignore and expand upon the 1956 Klamath Basin River Compact ("KBRC"). Although the KBRA expired on January 1, 2016 when Congress refused to authorize it, the UKBCA and KHSA continue to live on, with the federal, state, tribal and private actors noted above endeavoring to insert amendments that would enable the implementation of these agreements without Congress' approval, and despite the failure of the scientific, engineering and economic studies supporting these agreements - i.e., the "Secretarial Determination Studies" to meet the rigorous peer review standards imposed by federal law - the Information Quality Act.
ORDER REFERRING CASE to Magistrate Judge Robert C. Mitchell for settlement purposes only. Signed by Magistrate Judge Susan Paradise Baxter on 4/27/2017.
Minute Entry for proceedings held before Magistrate Judge Robert C. Mitchell: Settlement Conference held on 5/31/2017 unsuccessful.
Domestic Representative Client Deliverables
Assessed redrafted and secured substantial (USD$750K) asset-backed lending facility for private U.S. solar energy leasing client to permit aggressive home solar installations in chosen market.
Settled strategically threatening minority shareholder action to protect private U.S. software developer client's ability to secure a new round of investor financing for commercialization of advanced software technology.
Thwarted an alleged design patent infringement claim filed against private U.S.-based textiles products importer-exporter to avoid significant liability and treble damages; assured the preparation of new patent design applications to enable client to secure substantial market share.
Reduced regulatory risks posed to coal-based assets of U.S. public chemicals and energy extraction and refining company facing onerous U.S. regional and state-level climate change, environmental/chemicals regulations, renewable portfolio standards, and non-financial reporting requirements, by reeducating decision-makers via congressional and administrative agency briefings and preparation and publication of an internationally referenced peer-reviewed legal monograph accompanied by numerous expert commentaries.
Identified and reduced environmental, health and chemical safety-related regulatory risks for public and private U.S. chemicals/ pesticides manufacturers facing higher formulation and production costs due to U.S. congressional and administration efforts to amend federal environmental and chemicals laws and regulations incident to the proposed U.S. accession to the UN Convention on the Law of the Sea ('UNCLOS'), by delivering congressional committee briefings, participating in robust panel discussions at the Reserve Officers Association and National Defense University, and publishing internationally referenced legal peer-reviewed and other analyses of the environmental, technological, economic and national security implications of said treaty, thereby permitting informed, cognizant congressional consideration in lieu of pursuing UNCLOS accession/ ratification.
Advised a U.S.-based multinational apparel and footwear manufacturer concerning revised U.S. Department of Defense ('DOD') product procurement processes and procedures implementing such agency's reinterpretation of longstanding defense department procurement legislation putatively updated to provide statutory derogations reflecting U.S. outsourced manufacturing trends; developed unique strategic and tactical administrative approach, in light of the agency's numerous intra-organizational challenges, enabling the DOD Defense Logistics Agency to reclaim from Non-appropriated Funded Instrumentalities ('NAFIs') central product procurement responsibilities for U.S. designed and manufactured higher technology dual-use products without client's immediate resort to potentially antagonistic congressional intervention in DOD affairs.
Prepared and filed at the Supreme Court of the United States, on behalf of a nonprofit organization, at the cert petition stage, an Amicus Curiae Brief supporting Petitioners in the case of Chamber of Commerce of the United States of America, State of Alaska, and American Farm Bureau Federation v. Environmental Protection Agency, Docket No. 12-1272, one of twelve separately filed cases previously consolidated by the United States Court of Appeals for the District of Columbia Circuit in the case of Coalition for Responsible Regulation, et al. v. Environmental Protection Agency, 684 F.3d 115 (D.C. Cir. 2012). Amicus’ interest in this case stems from EPA’s disregard for the procedural due process requirements intended to ensure the quality of agency-disseminated third-party-developed scientific data that served as the basis for EPA’s Final Greenhouse Gas Endangerment Findings and subsequent promulgation of economically significant regulations governing mobile and stationary source GHG emissions.
Legal counsel and representative of a community of generations-old privately held family agricultural, ranching and business interests operating on fee patented lands located on and appurtenant to the Flathead Indian Reservation in northwestern Montana ("Plaintiffs" and similarly situated persons), whose economically valuable land and water rights, constitutional rights of equal protection and due process of law, administrative right to open public hearings (guaranteed by statute and regulation) and, most recently, their right to personal safety, have been seriously threatened by years of ongoing arbitrary, capricious and illegal and deceptive U.S. federal government agency (Federal Energy Regulatory Commission (FERC) and Department of Interior Bureau of Indian Affairs (DOI-BIA) and Fish and Wildlife Service (DOI-FWS)) regulatory practices and procedures failing to honor the rule of law, and U.S. federal tribal self-governance/self-determination and sovereignty policies, and by the State of Montana's ceding of aboriginal time-immemorial instream flow rights to State waters to the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation (CSKT) pursuant to the Hellgate Treaty of 1855 and the recently executed CSKT Water Compact ("CSKT Water Compact") entered into between the State of Montana, the U.S. Department of Interior and the CSKT. These state and federal government practices, policies and actions collectively have enabled the CSKT to diminish Plaintiffs' exercise of and access to their legally and validly held water rights via unilateral assumption of actual control of ALL physical infrastructure (dams, reservoirs, irrigation pumping systems and canals paid for by Plaintiffs, including the large Kerr Dam (a "black start" "category 3" high safety risk dam exclusive ownership, control and management of which was turned over to the CSKT on 9/5/15) located above and on the Reservation.
Legal Counsel and representative to Western States Constitutional Rights, LLC, a Montana-based nonprofit entity the mission of which is to promote the protection of private property rights held by western United States property owners against reckless federal, state and local government laws, regulations and policies.
A compilation of all of these documents along with media reports of an evolving legal and political scandal in the Klamath Basin is available here.
A recent exchange of email and hardcopy correspondences between governmental officials and public stakeholders regarding the former's nondisclosure of the Amended KHSA text and the new KPFA before the April 6, 2016 scheduled signing ceremony is available here and here.
A recently dispatched letter to Interior Secretary Jewell by another public stakeholder is available here.
The first media reports about the improper procedures behind the signing of these basin agreements are available here and here.
Recently dispatched letters to U.S. Congressman Doug LaMalfa (CA-R) and Greg Walden (OR-R) describing the oppressive terms and conditions imposed by the BOR's non-negotiable, one-sided extortion contract and requesting their presence at the Klamath Irrigation District's scheduled April 21, 2016 meeting with senior BOR officials in Sacramento, CA are available here and here.
Evidence of questionable non-transparent prior KID Board activities is available here and here.
The first media reports about the one-sided extortion contract the BOR has compelled the Klamath Irrigation District to sign under veiled threat of water shut-off and unavailability of government funds is available here.
The KID's response to the Bureau of Reclamation's explanation of why it has been unable, since 2001, to provide the KID and other Klamath Project irrigation districts a yearly accounting of the net balance of each district's portion of Project capital costs and operation and maintenance (O&M) expenditures, is available here, & initial inquiry regarding title transfer is available here.
Bureau of Reclamation's official confirmation for the first time that the KID is debt-free to the Bureau - clear on its share of Project construction costs under the 1954 contract, AND clear on its current (2015-2016) O&M expenditures - is available here.
Local biased media reporting by the Klamath Falls Herald & News (H&N) has assisted proponents of the Klamath Basin Agreements (currently sitting KID minority Board members and their patrons) to disparage, harass and intimidate the current KID Board majority and their District patrons in Klamath Falls, Oregon. Their objective has been to disrupt District business and to tortiously interfere with current District counsels' legal representation (and thereby raise District legal costs) to ensure a successful recall of the majority Board members and the minority's retaking of political and financial control over the District which they previously held for more than 25 years with the assistance of a family of local lawyers advising the District for 90 years. The KID Board majority had hired new counsels consistent with their November 2015 electoral mandate to prevent the implementation of the Obama administration-favored Klamath Basin Agreements which will compromise Klamath Irrigation Project farmer and rancher water and land interests.