Delta Smelt Wins Victory in Federal Court

The future of the Delta smelt is back in the hands of the federal District Court | Photo: USFWS/Flickr/Creative Commons License

In a ruling long awaited by wildlife advocates and Central Valley water interests alike, the U.S. Court of Appeals for the Ninth Circuit today struck down most of a 2010 lower court ruling on federal protections for a small fish in Northern California.

The ruling mostly reversed a decision issued by U.S. District Court Judge Oliver W. Wanger in 2010. In that decision, Wanger ruled that USFWS had acted "arbitrarily and capriciously" in crafting a Biological Opinion (BiOp) saying that continued operation of two large state and federal water projects posed a threat to the continued existence of the the Delta smelt, which is listed as Threatened under the Endangered Species Act.

Wanger ordered USFWS to rewrite its Biological Opinion (BiOp), and today, the Ninth Circuit has ordered the District Court to re-craft Wanger's ruling. And if that seems confusingly complex to you, you ain't seen nothing yet.

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Here's the background.

The Delta smelt, Hypomesus transpacificus, is a two- to three-inch fish that lives only in the brackish waters of the Sacramento-San Joaquin Delta. Restricted to a narrow range of salinity where freshwater from the state's rivers meets tide water from San Francisco Bay, the smelt's numbers have been seriously depleted by diversion of fresh water for agricultural and municipal uses. The Central Valley Project (CVP) and the State Water Project (SWP) take fresh water out of the Sacramento River and ship it southward to San Joaquin Valley farms and southern cities. That reduces the amount of fresh water flowing through the Delta, which allows salt water to penetrate further inland with each high tide, altering the smelt's preferred salinity "mixing zone."

What's more, pumping fresh water through the Delta's labyrinthine channels actually reverses the flow of some of those channels, causing smelt and other fish to run into the projects' gigantic pumps, which almost never ends well for the fish.

Over the course of the previous decade, the federal Bureau of Reclamation asked USFWS for a Biological Opinion to guide its operations of the CVP, as well as its work to coordinate with the California Department of Water Resources as that agency operated the State Water Project. USFWS wrote up a BiOp in 2005, which essentially said business as usual for the CVP and SWP wouldn't hurt the smelt. USFWS promptly got hauled into court by the group Natural Resources Defense Council (NRDC), which claimed that the 2005 BiOp didn't take into account the fish's startling decline in numbers, among other things.

In 2007, Judge Wanger ruled for NRDC, and USFWS started rewriting the smelt BiOp. The agency released its new version in 2008. The 2008 BiOp couldn't have been more different than the 2005 version: USFWS found that continued pumping would indeed threaten the fish. The 2008 BiOp also pointed out that water quality issues affecting the fish would be augmented by pumping, and assessed the smelt's numbers as being at their lowest since tracking started in 1967. USFWS urged sharp cuts in diversions of fresh water from the Bay-Delta ecosystem. BuRec accepted the BiOp and began to work to incorporate the recommendations into its updated Environmental Impact Statement for the CVP.

Not at all surprisingly, a diverse group of water interests led by the San Luis & Delta-Mendota Water Authority and the Westlands Water District hauled the BiOp back into court all over again in 2009, fearing that the restrictions on pumping USFWS deemed vital to the survival of the smelt would hit their pocketbooks hard. The result was Wanger's 2010 ruling that USFWS had yet again acted in an "arbitrary and capricious" manner in crafting the 2008 BiOp, and that BuRec had acted illegally in accepting the document. BuRec, USFWS, and a few other federal agencies, as well as NRDC, appealed the decision, resulting in today's ruling. In the meantime, USFWS set to work writing yet a third version of the smelt BiOp, as ordered by the District Court.

Among other things, the Ninth Circuit faulted Wanger for trying to establish what the proper science on Delta smelt ought to be by inviting testimony from competing panels of experts. But in a remarkably concise, blunt, and even humorous passage, the Ninth Circuit panel's majority said they couldn't quite blame Wanger for having trouble grappling with the BiOp's science:

Before we consider the challenges to the BiOp, we have some preliminary observations. First, the BiOp is a bit of a mess. And not just a little bit of a mess, but, at more than 400 pages, a big bit of a mess. And the FWS knew it. In November 2008, shortly before the FWS submitted its final draft, the California Department of Water Resources commented on a portion of the FWS's draft. Under the title "The Document is Confusing and Disorganized," the DWR advised that "the document is especially unrefined. The text is often out of logical order..., many actions are fairly vague, and the document is unpolished." Some portions, DWR wrote, were "largely unintelligible."

But what the panel offered Wanger with one hand it took away with the other, pointing out that the BiOp's disorganization seemed to be the result of somewhat arbitrary deadlines imposed in part by the District Court:

This challenging deadline was not the fault of the agency, but was set by the same district court that would later hold that the FWS's rushed BiOp was arbitrary and capricious... The BiOp is a jumble of disjointed facts and analyses. It appears to be the result of exactly what we would imagine happens when an agency is ordered to produce an important opinion on an extremely complicated and technical subject matter covering multiple federal and state agencies and affecting millions of acres of land and tens of millions of people. We expect that the document was patched together from prior documents, assembled quickly by individuals working independent of each other, and not edited for readability, redundancies, and flow. It is a ponderous, chaotic document, overwhelming in size, and without the kinds of signposts and roadmaps that even trained, intelligent readers need in order to follow the agency's reasoning. We wonder whether anyone was ultimately well-served by the imposition of tight deadlines in a matter of such consequence.

Even in the absence of unrealistic deadlines the 2008 BiOp would likely have been an imposing document, as labyrinthine as the network of sloughs that make up the Delta. According to USFWS, the smelt BiOp was the most complex Biological Opinion the agency had ever attempted. And that complexity was reflected in the web of legal proceedings that surrounded it. As the Ninth Circuit panel wrote:

This tortured procedural history has extended over seven years, and has led to five fully consolidated suits and one partially consolidated suit brought by various groups who use water supplied by the CVP and SWP, as well as to the completion of two extensively researched BiOps -- with a third currently in progress. All the while, the delta smelt has teetered on the brink of extinction.

The case now goes back to the District Court with orders that the earlier decision be rewritten to reflect the Ninth Circuit panel's findings. We're not sure what this decision means for the fate of USFWS' third draft of the smelt BiOp: legal prognostications like that are above our pay grade. And given both the ongoing drought and the perception in conservative circles that the Ninth Circuit is in the pocket of the green movement, it's likely that this isn't the last appeal the smelt BiOp case will encounter. Central Valley water interests have drawn a bullseye on the delta smelt, and they're not going to go away without a fight.

But we're pretty sure of one thing: Somewhere right now in a room in Fresno, Oliver Wanger is feeling at least a little relieved that he retired in 2011, and won't have to deal with this monster of a case coming back into his courtroom.

About the Author

Chris Clarke is a natural history writer and environmental journalist currently at work on a book about the Joshua tree. He lives in Joshua Tree.
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