December 19, 2010

A response to On the public record

By A response to On the public record

Author: Brandon Middleton

On the public record launches into hysterics in response to my blog post yesterday on Judge Wanger’s delta smelt decisionOTPR oddly takes issue with PLF's satisfaction over the decision and what it means for our clients, including Stewart & Jasper Orchards.  OTPR seems to think the fact that Judge Wanger did not agree with some of our claims precludes PLF from celebrating the overall significance of the decision:

Stewart and Jasper?  Oh hah hah hah ha ha ha hah hah ha hah hah!!  HAH HAH hah hah ha hah ha ha HAhaha ha!  Really?  Haha haha hah hah HAHA ha ha!! The Stewart and Jasper bits were the funniest part of the decision.  Judge Wanger resoundingly denies both of Stewart and Jasper’s bizarre claims on pages 196-200 (points C and D).

The “bizarre claims” that OTPR is referring to were 1) the government arbitrarily failed to consider the economic impacts resulting from the reasonable and prudent measures adopted by the U.S. Fish and Wildlife Service in order to minimize incidental taking of delta smelt and 2) the U.S. Fish and Wildlife Service illegally arrogated authority to itself over water project operations managed by the Bureau of Reclamation and the California Department of Water Resources.

It’s hard to understand how the demand to state the economic impacts of the RPMs could be described as “bizarre,” especially considering Judge Wanger’s dismay throughout the litigation that government failed to consider the socioeconomic impacts of its biological opinion.  True, the court ultimately did not agree with this particular claim, but OTPR's contention that this was a “resounding” denial is hyperbole.

As for our illegal arrogation of authority claim, OTPR writes the following:

Judge Wanger dismisses the next point that Stewart and Jasper raise with equal dispatch.  (Page 198, line 8)  ‘The Stewart & Jasper Plaintiffs raise a novel argument that’ Fish and Wildlife Service is trying to be the boss of Reclamation, and that’s illegal.  Judge Wanger is having none of it.  He writes (page 199, lines 3-6):  The law is clear that FWS has no such authority, nor can FWS, as consulting agency, act ultra vires to usurp the operational authority of the Bureau and DWR over the Projects.

I don’t think OTPR understands that lines 3-6 are actually Judge Wanger agreeing with our point as an initial matter.  The Bureau of Reclamation and DWR have certain operational responsibilities, and the Fish and Wildlife Service cannot use its ESA authority to take these responsibilities away from Reclamation and DWR.  Judge Wanger's analysis (and the language cited by OTPR in particular) confirms this point.

Let’s take a look why Judge Wanger actually disagreed with our claim in the end.  From p. 199-200 of his decision:

Reclamation is not legally compelled to blindly follow FWS’s pronouncements. Reclamation retains the authority to reject the RPA at any time, subject to its obligation to reinitiate consultation. Although FWS has not yet demonstrated a willingness or capability to protect interests other than the species, it cannot be assumed that Reclamation will not lawfully discharge its statutory water supply responsibilities.

Emphasis mine.  So even though the court disagreed with our claim that the Fish and Wildlife Service had illegally arrogated operational authority to itself, Judge Wanger went out of his way to emphasize once again the Service’s species-only mindset.  How this suggests that our illegal arrogation claim was a “crank point,” as OTPR contends, is beyond me.

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