Agricultural stakeholders should be “very distrustful” of the agreement, says an attorney who has represented farmers in similar legal fights in the past.

Cheyenne, Wyo., attorney Karen Budd-Falen, called the agreement “a very dangerous thing” for agriculture.

“The underlying document is so geared towards only looking at the benefits of breaching dams, that I would be very afraid that no one is going to consider the impact of dams,” Budd-Falen told the Capital Press. “There’s nothing in these documents that indicates they’re going to consider the impacts, either positive or negative, on ag at all.

“It’s also pretty clear that they did not talk to all of the parties,” Budd-Falen said.

She said the settlement agreement filed with the court is basically a stay of litigation for five years, with the potential to be renewed for another five years, so that the document leaked by Republican lawmakers can be implemented. 

“Clearly, the document is planning to breach dams and the way the studies are set up, they’re only going to be looking at the positives of dam breaching, not at any of the negatives,” she said. “But the only thing the court is going to do is stop the litigation for five years.”

The document discusses developing alternative power, presumably through wind and solar, “which I do not believe in anybody’s mind is going to be as cheap as the power you’re getting from hydropower,” Budd-Falen said.

She expects opposition to the joint motion to stay the litigation, from the state of Idaho and other groups.

Budd-Falen agrees with stakeholders that the White House and plaintiffs recognize Congress’ ability to authorize breaching, but remains concerned. She worries about lawmakers from urban areas or outside the Pacific Northwest who are unaware of the effects breaching could have.

“It’s going to be a lot harder for Congress if you have this huge five- or 10-year study saying ‘Here’s all these wonderful things,'” she said.

Next steps

Ag needs to document its complaints through the U.S. Department of Agriculture and U.S. Department of the Interior, Budd-Falen said. 

She served as deputy solicitor for wildlife and parks in the Department of the Interior in the Trump administration.

She recommends farm organizations write “actual letters” documenting their desire to be involved in the process.

“The federal agency may ignore those letters, but if you’re building an administrative record to complain about later, it has to be in writing,” she said. “That way, if there’s a problem in the future, you’ve built the paper trail all along to say, ‘You’re not considering this. You forgot to consider that.’ I don’t have an argument that I’ve been ignored unless I say in writing, ‘Don’t ignore me.'”