Legal struggle over Gold Ray continues in federal court

Supporters of efforts to save Gold Ray Dam from demolition will get their day in federal court Monday when they will argue that Jackson County has violated their civil rights by working to remove the 106-year-old structure from the Rogue River last month without all the necessary permits.

Their suit claims that a county-employed hearings officer — who ruled Friday against the group's appeal of the last permit needed for demolition — should not be hearing the case because as a county employee he could be biased.

They also claim the county violated their right to a fair trial when contractors demolished part of the dam's powerhouse, rendering moot supporters' arguments that the powerhouse instead should be saved as a historic site.

"That amounts, in our opinion, to obstruction of justice," said Jack Swift, a Grants Pass attorney representing the supporters.

"What they're attempting to do is not legal and we feel we have the right to have that adjudicated," Swift said.

County officials, however, say state, federal and now county agencies have issued all the necessary permits for the dam's removal.

In court briefs filed late last week, county officials argue that the suit does not belong in federal court and represents a frivolous attempt to delay demolition until October, the deadline for using the $5 million federal stimulus grant that is largely funding the $5.6 million effort.

County officials have said that the county's financial liability for owning the aged dam and antiquated fish ladder means county taxpayers would pay for the removal should the grant lapse.

"It's a matter of when at this point," county Administrator Danny Jordan said. "The more they delay, the more it can potentially cost local taxpayers to get it done."

"There is $5 million-plus at stake," Jordan said.

The sides will square off at 1:30 p.m. in U.S. District Court in Medford.

The county has asked U.S. District Judge Owen Panner to dismiss the suit and lift his temporary court order halting prep work for demolition of the dam.

The dam's supporters have asked for a preliminary injunction banning all work at the dam until their case runs through the courts.

"If we pursue litigation on this and they've destroyed the dam, there's nothing left," Swift said. "If you don't slow them down, they will destroy it before we can get anything argued."

County hearings officer Donald Rubenstein on Friday issued an order upholding county planners' decision to award a floodplain permit to the county.

Swift argues that dam supporters were denied their due process because Rubenstein was hired and paid by the county. He said an outside officer should have heard the case.

"We have a county employee deciding who's going to win — his boss, or the people from the hinterland," Swift said.

The county argues in court briefs that the dam supporters don't have the legal standing to sue under a civil rights complaint because they haven't shown how removing the dam will harm them.

They also argue that the suit does not belong in federal court because the dam supporters have yet to exhaust their local and state appeals.

In court briefs, county attorneys argue that it's against the public interest to stop the project both because of the loss of federal stimulus money and because it would keep in place a structure identified as the largest single impediment to fish passage in the Rogue Basin and the fifth worst in all of Oregon.

If Panner grants the injunction, the county already has asked the court to require the dam supporters to put up a $5 million bond to cover the county's cost should it ultimately prevail in court.

Jordan previously said the county intends to seek court costs and other financial damages should they win. Jordan said Friday he had no estimate of costs on the case to date.

Swift said those actions amounted to an attempt to strong-arm the suit filers — Charles Boyer of Eagle Point, Dalton Straus of Sams Valley and Randall and Angela Schock, who live immediately upstream of the dam.

The Jackson County Board of Commissioners in May said removing the dam was the best and least expensive option for the dam's fate. If the county does not remove the dam, it is financially liable for improving the dam's antiquated fish ladder, which does not meet federal standards.

An environmental assessment done through NOAA-Fisheries also considered an option to fix the dam, repair the fish ladder and build a new powerhouse to restore Gold Ray Dam's long-dormant hydropower capabilities.

But that option was rejected by the commissioners because of its $69.7 million price tag and current state laws that ban new hydropower plants on much of the Rogue.

Reach reporter Mark Freeman at 541-776-4470, or e-mail at

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