A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

5 September 2015

Kerr Dam renamed Salish Kootenai Dam; TRO denied

Kerr Dam on the Flathead River below Flathead Lake was named for Frank Kerr, chairman of Montana Power when the dam was built. Montana Power is no more, a victim of corporate suicide. Frank Kerr is dead. And the concrete arch dam, now owned by the Confederated Salish and Kootenai Tribes, has a new name: the Salish Kootenai Dam.

“I look forward to not ever mentioning the previous name again,” said Vernon Finley, chairman of the CSKT, this morning near the conclusion of the transfer ceremony and celebration in Ronan.

Broadcast over the internet to CSKT members in all 50 states, the event featured fascinating movies and still photographs of the dam’s construction, much traditional music and many drums, and a fine a cappella performance of the Star Spangled Banner.

The CSKT’s acquisition of the dam, built on tribal land, ends a great injustice. In allowing private investors to build and own the dam, the federal government failed to discharge its obligation to protect the best interests of the tribes, which should have had ownership of the dam from the gitgo.

Federal court denies TRO

Late yesterday, a federal district court in Washington, D.C., denied the request by Verdell Jackson, Bob Keenan, and Pointer Enterprises, Inc., to stop the transfer of the dam. In his five-page denial (PDF) of the request for a temporary restraining order, Obama appointed Judge Rudolph Contreras wrote:

Plaintiffs have also failed to adduce any evidence that they are likely to suffer irreparable harm should the Kerr license be transferred to CSKT and EKI. In their Motion, Plaintiffs make general claims of economic harm they will allegedly suffer should CSKT and EKI take control of the Kerr dam. Additionally, Plaintiffs make general allegations regarding the natural security importance of the Kerr Project, as well as somewhat perplexing arguments regarding the Turkish Government’s involvement with Native Americans. However, to the extent such injuries are cognizable, nowhere are those allegations substantiated in the record. Indeed, at hearing, counsel for Plaintiffs conceded that no such evidence has been submitted relating to the Plaintiffs’ alleged economic harm. Accordingly, Plaintiffs have failed to meet their burden here.

Moreover, that the Plaintiffs have waited until the eve of the transfer counsels against the granting of an emergency injunction. “[A]n unexcused delay in seeking extraordinary injunctive relief may be grounds for denial because such delay implies a lack of urgency and irreparable harm.” Open Top Sightseeing USA v. Mr. Sightseeing LLC, 48 F. Supp. 3d 87, 91 (D.D.C. 2014) (quoting Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005). The Plaintiffs have been aware of the eventual transfer of the Kerr license on this date for over a year, as evidenced by CSKT’s March 5, 2014 “Notice of Conveyance” setting September 5, 2015 as the date to transfer the license. Plaintiffs’ Ex. 14. Such delay strongly counsels against granting this Motion.

Lastly, the Plaintiffs claim that the granting of this Motion is “the only available remedy at law or equity to ensure that a public evaluation takes place” prior to the Kerr transfer. Plaintiffs’ Mem. Supp. 30. Such evaluation, they claim, serves the public interest. As noted above, Plaintiffs were provided opportunity to raise their concerns regarding this transfer via written submission — and did so. This Court cannot conclude that granting a motion for a temporary restraining order filed at this late date, on the eve of a transfer scheduled over one year ago, would serve the public interest.

Dr. Ed Berry, in an excellent blog post on Keenan v. Bay and the politics behind it, notes that just filing the complain probably required $25,000, and litigating the case could cost ten times that much. He wonders who is bankrolling this strange lawsuit. So do I. I think Keenan and Jackson may be puppets for a person, or persons, with a huge, and at least partly racist, grudge against the CSKT.

According to Dennis Bragg’s report on KPAX TV, Contreras gave the parties to the litigation until November to file responses to his denial of the TRO. I have doubts that Keenan, et al, can establish standing to sue on the matter.