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Friday, September 3, 2021
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the opinions of the authors but
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Opinion
Editor & Publisher
Managing Editor
Joe Beach
Carl Sampson
opinions@capitalpress.com | CapitalPress.com/opinion
Our View
The high cost of going broke
L
ike many readers, we have
watched with great interest
the story of Washington
rancher Cody Easterday’s fleec-
ing of Tyson Fresh Meats and the
subsequent bankruptcy of Easterday
Farms, one of his family’s compa-
nies.
Easterday has admitted to defraud-
ing Tyson and another company out
of $244 million, billing the com-
panies for buying and feeding cat-
tle that didn’t exist. He spent much
of the proceeds to cover losses he
racked up on commodity futures con-
tracts, according to court records.
He has pleaded guilty to one count
of wire fraud, and is scheduled to be
sentenced Oct. 5.
As part of the plea, Easterday has
promised federal prosecutors he will
make restitution.
As the scandal unfolded, Easterday
Farms, one of several family com-
panies, filed for Chapter 11 bank-
ruptcy protection. Its assets are being
sold to settle creditor claims. Several
individual farms, for example, were
sold for $209 million to Farmland
Reserve Inc.
The bankruptcy proceedings are
interesting on a number of levels,
revealing disputes over asset sales
and other corporate intrigues. But
what has really caught our eye is the
squabble over the mounting legal
fees associated with the bankruptcy.
It costs a lot of money to go broke.
The fees of the attorneys repre-
senting major parties in the bank-
ruptcy are paid from the proceeds
from the sale of the company’s
assets. After the lawyers get their
cut, what remains goes to satisfy
creditors.
People who are owed money have
a vested interest in how much the
lawyers make. The lawyers are argu-
ing among themselves over the defi-
nitions of “excessive” and “reason-
able” fees.
The Justice Department has
objected to Easterday’s Los Ange-
les law firm — Pachulski, Stang,
Ziehl and Jones — billing $3.8 mil-
lion, an average hourly rate of $1,053
per hour. The bankruptcy trustee
argues that the rates far exceed what
local lawyers involved in the case are
seeking and are substantially higher
than fees attorneys recently collected
in a more complicated bankruptcy
case in Eastern Washington.
Pachulski, Stang, Ziehl and Jones,
in turn, has objected to $752,042 in
legal fees sought by a law firm repre-
senting the Prudential Insurance Co.,
a major creditor.
Salmon migrated past
Klamath falls before dams
Our View
A
Don Jenkins/Capital Press
Twelve years ago, Clark County, Wash., farmer Bill Zimmerman applied for a water right for his
family’s 149-year-old operation.
There’s got to be a way
L
ike so many other stories related to
water use in the Northwest, the one
about Bill Zimmerman, a farmer in
Clark County, Wash., is a head-scratcher.
His farm has been using water from its
well for, oh, about 149 years. That’s 17
years before Washington became a state.
For most of that time, Zimmerman
obtained water informally. That was appar-
ently OK with the powers that be in territo-
rial times and after statehood. In southwest
Washington, it rains about 42 inches a year,
so irrigation is usually needed only during
dry spells in the summer.
Twelve years ago, to guarantee a source
of water to grow his crops of berries, corn
and other vegetables, Zimmerman applied
to the Washington Department of Ecology
for a water right. He asked for 120 acre-feet
a year for his 94 acres.
Since then, he’s been waiting. And
waiting.
Which makes us wonder — if a simple
water right application remains in limbo
for a dozen years, how long should it take?
According to the department’s Frequently
Asked Questions online, “a decision on
your water right application may take any-
where from months to years.”
It doesn’t say anything about decades.
No matter how you look at this case, it
doesn’t add up.
The farmer is left hanging. He needs the
water, which he has been using for nearly
a century and a half, yet he can’t get an
answer. Under a state Supreme Court rul-
ing, he must prove that his water right will
U.S. Bankruptcy Judge Whit-
man Holt in Yakima urged lawyers to
talk and try to settle remaining legal
issues to keep fees to a minimum.
“Sometimes litigating everything
all the way to the mat is the worst
possible outcome for everyone, and
that’s particularly true in bankruptcy
cases, where there’s just not enough
pie to go around, which appears to be
where we’re ending up in this case,”
Holt said.
We are reminded of Charles Dick-
ens’ “Bleak House,” where the inher-
itance case central to the plot, Jarn-
dyce and Jarndyce, has already been
litigated for “generations” when the
story begins. Eventually, “the whole
estate is found to have been absorbed
in costs,” leaving heirs with nothing.
We have no position on the legit-
imacy of the fees requested. But
maybe Shakespeare sums up our
feelings best: “Ill blows the wind that
profits nobody.”
not decrease the flow of a nearby stream,
Salmon Creek. That’s in spite of the fact
that it is still flowing even after 149 years of
farming.
You’d think that would be proof enough.
Ecology appears to have developed a
case of paralysis by analysis, not telling the
farmer where he stands, other than “You’re
almost to the top of the pile. Anyway, you’ll
be fine,” according to Zimmerman.
And other water right holders in the area
wonder how this case could impact them.
It all comes down to a problem with
Ecology. By taking an inordinate amount of
time to issue decisions on water right appli-
cations, it is gumming up the entire process.
Ecology further muddied the water by
demanding a mitigation plan that would
force him to hire a hydrologist to come up
with a plan to offset any water he uses by
putting the same amount into the creek. One
might assume that if he had that water avail-
able, he wouldn’t need the new water right.
With such laws and regulations, Ecology
has tied itself into a knot. It apparently can’t
say yes, and it can’t say no to the water
right.
Olympia is chock-full of really smart
people. They have college and graduate
degrees and all sorts of resources that a lone
farmer could never afford.
Our hope is that all of those smart peo-
ple would be able to put their heads together
and help that farmer keep doing what he
and his family have been doing for 149
years.
That’s not asking too much.
recent opinion piece
argues that salmon
were unable to migrate
upstream of the Klamath River
dams due to a natural bar-
rier. This matter is raised in
order to question the rationale
behind plans to remove the
lower four Klamath dams.
While I will avoid discuss-
ing the merits of dam removal,
I can address the matter of his-
toric fish migrations.
I authored several peer-re-
viewed publications on the
topic. I will attempt to set the
record straight by reviewing
the most compelling evidence,
which indicates salmon histor-
ically migrated well past the
site of the dams.
Note that while I have iden-
tified scores of relevant pri-
mary sources of information,
only 3 suggest that runs of
salmon beyond the area of Iron
Gate Dam were meager; the
rest indicate there were abun-
dant runs of salmon beyond
Iron Gate Dam as far as the
Sprague River above Upper
Klamath Lake.
The first accounts of the
presence of salmon in the
Upper Klamath Basin came
from John C. Fremont. In 1846,
Fremont recorded in his journal
that he obtained salmon from
one of the Indians at the outlet
of Upper Klamath Lake. Fre-
mont noted, “Up this river the
salmon crowd in great numbers
to the lake (Upper Klamath
Lake), which is more than four
thousand feet above the sea.”
He was the first but not the
only early non-Indian explorer
to the area to document salmon
in the Upper Basin. Other
accounts also come from news-
papers in the area. In 1884, the
Linkville Star reported that,
“The lake (Upper Klamath
Lake) abounds in both salmon
and trout, a source of pleasure
and profit to our citizens, and
especially to Poor Lo (Indi-
ans), who take them out in the
spring by the wagon load, and
pile them up like cordwood to
dry in the sun for his winter’s
food.”
Another example comes
from the Medford Mail Tri-
bune, which reported in 1914
that, “For years the (Klam-
ath) Indians have spent much
of the spring, summer, and fall
months catching salmon and
drying them for winter food,
and it is said that during the
last winter some of them actu-
ally suffered because they did
not have this supply.”
Additional accounts come
from federal agents, Indi-
ans, naturalists, biologists and
ethnographers.
More recently, genet-
icists contributed to the
story. Salmon bones found
in archeological sites in the
Upper Basin at known Klam-
ath Tribes fishing sites
were analyzed. The samples
GUEST
VIEW
John
Hamilton
ARTICLES ON
KLAMATH SALMON
• John B. Hamilton, Dennis W.
Rondorff, William R. Tinniswood,
Ryan J. Leary, Tim Mayer, Charleen
Gavete, and Lynne A. Casal (2016)
The Persistence and Characteristics
of Chinook Salmon Migrations to the
Upper Klamath River Prior to Exclu-
sion by Dams, The Oregon Historical
Society Quarterly, v117 Number 3.
https://bit.ly/37TEqqh
• John B. Hamilton , Gary L. Curtis ,
Scott M. Snedaker & David K. White
(2005) Distribution of Anadromous
Fishes in the Upper Klamath River
Watershed Prior to Hydropower
Dams — A Synthesis of the Historical
Evidence, Fisheries, 30:4, 10-20, DOI:
10.1577/1548-8446(2005)30[10:DO-
AFIT]2.0.CO;2 https://bit.ly/3mdh1Zi
ranged in age from post Euro-
pean contact to over 5,000
years old. DNA sequencing
revealed the presence of both
spring and fall chinook. This
supports the assertion that not
only did salmon make it to the
Upper Klamath Basin, multiple
seasonal runs made it.
Legally, the question was
resolved in 2006. PacifiCorp
challenged federal agencies’
mandate requiring fish passage
beyond the dams for any new
dam license. Tribes, agencies,
and the company provided
written and verbal testimony.
The judge found that chinook
salmon (both spring and fall
run) were abundant above the
dams including the tributaries
of Upper Klamath Lake. Thus,
as a legal matter, this issue is
settled.
The opinion piece is
based solely on sketches of
an ancient lava flow made
by Copco dam engineers. In
reviewing the cited sources,
it is clear that early engi-
neers indeed deduced the geo-
logic history of Ward’s Can-
yon as the site of an ancient
lava flow; however, the river
eroded the formation thou-
sands of years ago. This has
little bearing on the question
as to whether salmon were
present upstream at the time of
dam construction.
I invite skeptics to review
the publications I cited. Each
includes photographs provided
by a range of sources that
clearly reveal that residents
of the Upper Klamath Basin
enjoyed abundant runs of
salmon until the construction
of the Klamath River dams.
John Hamilton is a retired
biologist with the U.S. Fish
and Wildlife Service. He is the
primary author of two peer-re-
viewed publications on salmon
in the Klamath River.