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April 20, 2010 All navigable or commercial fish producing
rivers fall under the protection of the Dormant Commerce Clause.
This is dictated by the Magnuson Stevens Act and the Sustainable
Fisheries Act. Under both of these Acts the only Federal
regulatory actions that can be taken are specifically water and
substrate only. Within the Magnuson Stevens Act it clearly
addresses the Endangered Species Act and dictates that it
supercedes the ESA and regulatory action can only be taken on
water and substrate only. All rivers that fall under the protection of
the Dormant Commerce Clause specifically state that it
supercedes any State action. Should a State list a species as
Endangered it cannot impose any regulatory action on said river.
Only a Federal listing of Endangered can result in regulatory
action and that is limited to water and substrate only.
Nowhere within the Magnuson Stevens Act is
reference made to dams, reservoirs, fish ladders or fish byways
and we might surmise that they have no regulatory relief in
these instances. Conversely, since dams are within the river
they may have some basis for regulatory control. At this point
in time I am unaware of any action taken against dams as part of
regulatory action by the United States for the propagation of
fish. Under the present Federal Environmental
Protection Act there are listed levels of toxicity for a
multitude of chemicals. As a search of the Federal EPA water
site there does not reveal a specific level of toxicity of
Microcystin. The only listed reference to Microcystin is a
proposed level submitted by the Hoopa Tribe of California. There
are a multitude of articles listed under the Federal EPA site,
however, none are listed under the EPA water site. A figure of
100,000 cells per milliliter is a number touted by the World
Health Organization. It would appear that each State has
determined its own levels for toxicity. It might be prudent to
again argue that since the rivers fall under the Dormant
Commerce Clause the only regulatory agency that can impose
regulatory control would be the Federal EPA and not the States
EPA. The California Water Quality Board has openly
admitted that samples submitted by the Karuk and Hoopa Tribes
are at best tainted as they were collected in backwashes and
samples held for an extended time period prior to testing.
Retaining samples for any length of time in warm weather would
hasten the reproduction of the Microcysin within the sample and
give a false high level of cells. Regardless of the results that
the Water Quality Board is using they have NO regulatory action
that can be imposed on waterways that fall under the
jurisdiction of the Dormant Commerce Clause. The National Research Council Those has
determined that those who crafted the proposed Klamath Basin
Restoration Agreement (aka The Water Deal) used
flawed studies to develop recommendations for Klamath River
flows, ignored calls by independent scientists for a whole basin
approach and did not propose using the sort of independent
science process that the National Research Council
recommended. Essentially the proposed Deal seeks to
substitute its political calculations for good science. Klamath
history teaches that when good science is ignored bad things
happen. That may be the future to which the Klamath River Basin
is headed if promoters of the Klamath Basin Restoration
Agreement get their way. According to a recent article by Felice Pace
he stated the following: “The most significant opposition to the
Deal could come in the future. The Obama
Administration, which has not yet made known its position on
the Deal, has pledged publicly to use the best
science when making natural resource decisions. And the
scientific underpinnings for the KBRA are weak at best. Knowing
this to be the case, the Deal’s promoters are doing what
they can to ignore and downplay scientific studies and opinions
which do not support the Deal. While some scientists in
the employ of Water Deal promoters tell us it is based on
good science and will allow salmon and other species to recover,
no independent scientists have endorsed the KRBA.“. KlamBlog
predicts that no independent scientist will endorse it in the
future either. Based on the information presented herein we
should question the millions of dollars being spent by
California Fish and Game and the Northwest EPA Water Quality
Board on projects that ultimately, if challenged, have NO
REGULATORY DISCRETION on waterways that fall under the Dormant
Commerce Clause of the Constitution of the United States. Let it
also be stated that California Judicial decisions that impose
actions on Dormant Commerce Clause waterways have NO
JURISDICTION. All such decisions should be abrogated and
dismissed. Respectfully Submitted; Dr. Richard A. Gierak Bachelor Degrees in Biology & ChemistryDormant Commerce
Clause Is Supreme As It Relates to the KBRA, KHSA, TMDL and
State Regulatory Actions
Doctorate in the Healing Arts
Former FERC team member 2000 - 2002
Director Interactive Citizens United
5814 State Highway 96
Yreka, CA. 96097
530 475-3212