SALEM — Northwest stakeholders say they’ve been shut out of the federal mediation sessions over the Snake River dams.

“We are not being informed about anything that’s happening in the mediation,” said Kurt Miller, executive director of Northwest RiverPartners, an association that advocates for hydropower. “In the process, there hasn’t been any mediation that’s involved us.”

“The secrecy has been extremely frustrating,” said Leslie Druffel, co-chair of the Pacific Northwest Waterways Association’s Inland Ports and Navigations Group. “…The lack of communication from the (federal government) to intervenor defendants doesn’t give us much confidence in this process.”

A coalition of environmental and fishing groups, led by the Earthjustice law firm, in 2020 sued over the U.S. Army Corps of Engineers, Bureau of Reclamation and Bonneville Power Administration dam operations plan.

The White House Council on Environmental Quality and Federal Mediation and Conciliation Service are continuing mediation during a stay of the litigation. The stay will end Aug. 31.

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Northwest RiverPartners and IPNG are parties in the mediation as intervenor defendants.

U.S. Agriculture Secretary Tom Vilsack said Aug. 1 that farmers are “well-represented” in the mediation process.

“If ag is getting equal consideration in the mediation process, it is difficult to see,” Druffel said.

‘Smoke-filled room’ dynamic“We have it on very good authority that Biden administration officials have been out here in recent weeks negotiating with the plaintiffs,” Miller said. “And yet, we haven’t had a real update on any of that, really for months.”

An Aug. 16 meeting was scheduled to provide an update, then rescheduled to Aug. 18, Miller said.

“It’s been such a smoke-filled room sort of dynamic,” he said.

“Of course, those of us in mediation are required to keep conversations confidential from those outside the process,” Druffel said. “It’s this lack of communication within the mediation that is maddening.”

Intervenor defendants were not included in negotiating or setting the rules of the mediation from the beginning, Miller said.

“The rules of the mediation have very much meant we’ve been treated like second-class citizens all the way through, up to current time,” he said. “It’s hard to have any faith that anything good will come out of this mediation if they’re unwilling to treat ag, utilities and irrigators as real partners.”

What Earthjustice saysSecrecy has been a concern for ag stakeholders since the mediation began.

“It is standard for litigation settlement conversations to be confidential, so that’s not, I think, in any way surprising,” said Amanda Goodin, senior attorney for Earthjustice.

Goodin also cited “hard confidentiality constraints.”

“I can’t speak for any other parties in the litigation, but it has always been a priority of ours to consider all of the users in the basin to develop a comprehensive plan for replacement services, to ensure that industries have their needs met,” she said. “We have never advocated for ignoring the agricultural industry, we have never advocated for yanking the dams out without paying any attention to the impact that that would have. Each study has concluded that we can get there, now we need to roll up our sleeves and do it in a way that works for ag and that works for the fish.”

What the White House says

“The Biden-Harris Administration is committed to working with all stakeholders to bring healthy and abundant salmon runs back to the Columbia River System and honoring federal commitments to Tribal nations while supporting local and regional economies, including critically important agricultural production and transportation,” said Alyssa Roberts, communications director for the White House Council on Environmental Quality.

Roberts directed questions on the confidential mediation process to the federal mediation service.

What the federal mediation service says“All of the parties have been, and continue to be, invited and welcome at any of the group mediation sessions,” said Greg Raelson, director of congressional and public affairs for the FMCS. “However, at times during the mediation process, a private caucus may be requested. This regular and normal part of any complex mediation can be initiated by either the neutral mediator or a party to discuss issues in a setting away from the other groups.”

How much say do intervenor defendants usually have?

“All of the parties are treated equally with respect to their rights to participation,” Raelson said. “A private caucus can be requested with the mediator by any party and at any time throughout the process. Similarly, no parties are excluded from the joint or group sessions.”

FMCS was retained by the White House council as a neutral third-party facilitator, Raelson said. The service treats all mediation as confidential.

“As with all of our work to help manage conflict, FMCS hopes that this process will lead to agreements that are mutually acceptable to all parties,” Raelson said.

Aug. 31 deadlineMiller and Druffel say it’s impossible to predict whether an announcement will come immediately as the mediation concludes.

Miller thinks an extension of the stay is possible.

He doesn’t expect the Biden administration to announce an executive order or agreement to breach the dams as part of the mediation.

“We and others have made a really strong case that the region cannot achieve its clean energy mandates and maintain an affordable, reliable electric grid without the dams in place,” he said.

But the administration might call for dam breaching, “which would be damaging,” he said.

“I don’t know what’s going to happen Aug. 31, but even if I did know, I would not be allowed to share it publicly,” said Goodin, of Earthjustice.

Another concern is what the administration promises plaintiffs in lieu of dam breaching, Miller said.

“One thing public power customers especially should be keeping their eye on is, are there promised dollars from BPA that will raise electricity rates or will there be a commitment to try to seek federal appropriations?” he said.

“I feel like this process is government at its worst,” Miller said. “At some point, they’re going to tell us what they decided. What we’ve seen runs completely contrary to the notion of bringing in a mediator.”

“This is by no means the only conversation that’s happening about this set of issues,” Goodin said. “There have been processes, there currently are processes, there will be processes in the future for the ag industry and all members of the public to provide extensive input on these questions. Focusing on the fact there’s a mediation going on really ignores that much broader context. It’s not as though anyone is being silenced here.”

“We believe the overall dialogue has been unbalanced and is not an accurate reflection of all stakeholder views, including those in the agriculture community,” said Michelle Hennings, executive director of the Washington Association of Wheat Growers. “Regardless of the recommendation reached through the mediation process, we continue to stand by the fact that dams and salmon can coexist, and we support state and federal investments in science-based solutions that ensure the health of the salmon population while maintaining the integrity of the Lower Snake River Dams.”