Demolition timing hangs on District Court ruling
By Mark Freeman
Construction crews as early as today will learn if they can resume preparing Gold Ray Dam for demolition or must wait indefinitely while a lawsuit challenges Jackson County’s removal of the 106-year-old structure from the Rogue River.
U.S. District Court Judge Owen Panner did not issue a ruling Monday on whether to extend the week-long shutdown of dam-removal work since the suit filed by dam supporters who claimed their civil rights had been violated by improper procedures.
After a 30-minute hearing in U.S. District Court in Medford, Panner said he would issue a written ruling “in a day or two” on the request for a preliminary injunction request.
A preliminary injunction could jeopardize the lion’s share of work remaining on the $5.6 million project because a $5 million federal stimulus grant funding the project sunsets in October, when any unused money must be returned.
Dam supporters said not barring the county from demolition while the suit remains open would lead to the destruction of the dam, fish ladder and powerhouse before the case gets adjudicated.
“That dam is a significant public resource,” Charles Boyer, one of the plaintiffs, said outside the courtroom following the hearing. “(Removing it) is a crime by the county against our future and our past.”
The Medford-based Rogue Flyfishers Association, WaterWatch of Oregon and the Klamath-Siskiyou Wildlands Center of Ashland have signed on as codefendants with the county, which took possession of the decommissioned hydropower project in 1972 with hopes of creating a park.
Center attorney Pete Frost said it has joined in part because the dam’s continued presence may be considered illegal under the federal Endangered Species Act because of its negative impacts on the Rogue’s threatened wild coho salmon.
The Oregon Department of Fish and Wildlife considers the dam to be the fifth worst fish impediment — and the single worst dam — remaining in Oregon. Federal law bars harming of any listed species without federal permits.
“We need to get the dam removed and the river restored in a short time frame,” Frost said outside of court.
Panner issued a temporary restraining order on demolition work July 19, setting up Monday’s hearing.
Plaintiffs’ attorney Jack Swift argues that dam supporters were denied their due process because county hearings officer Donald Rubenstein was hired and paid by the county. Plaintiffs did not allege any specific instances of bias.
Dam supporters had asked for an outside entity to hear their appeal of the county’s floodplain permit. Rubenstein ruled Friday in the county’s favor.
In court, Swift even suggested that if the county should lose this case, it could jeopardize Rubenstein’s future employment.
Carla Scott, the county’s lead attorney on the case, argued that hearings officers regularly deny or amend permits issued by county staffers. Based on case law, Scott argued that the plaintiffs were required to show that Rubenstein had a personal stake in whether the dam remained or was demolished. Panner said he would not rule on the merits of the case yet, just on the restraining order. Swift said Panner’s questions to the attorneys show he’s grasped the legal issues outlined in court filings last week, but Swift said the questions did not tip Panner’s hand on whether he was leaning toward one side Monday.
“With Judge Panner, you won’t know until the order is issued,” Swift said.
Mark Freeman is a reporter with the Mail Tribune. Reach him at 541-776-4470, or e-mail at firstname.lastname@example.org.