March 13, 2014

Delta smelt appeal decided

By Damien M. Schiff Senior Attorney

This morning, the Ninth Circuit Court of Appeals, in a fractured panel decision, largely upheld the 2008 Delta smelt biological opinion.  The panel decision holds that Judge Wanger erred in letting in extra-record evidence to decide the case, and also erred in finding fault with how the opinion estimated the impacts of the Central Valley and State Water Projects on the delta smelt and its habitat.  The panel affirmed, however, Judge Wanger’s decision holding that the Bureau of Reclamation had violated the National Environmental Policy Act by accepting the biological opinion’s water cutback regime without first conducting an analysis of the environmental impacts of imposing such a regime on the San Joaquin Valley.

Bottom line:  this decision is terribly disappointing and bodes ill for farmers, farm laborers, and millions of other Californians dependent on a reliable water supply.  The decision also reveals the perniciousness of the United States Supreme Court’s inflated rhetoric (from its infamous decision in TVA v. Hill) that Congress intended to make species preservation the “highest” of governmental priorities.  Not only is that assertion of legislative intent plainly false, its impact on the administration of the Act in the lower courts has led to disastrous, anti-human results.  Let’s hope that the Supreme Court, which recently has been backing away from TVA‘s extremism, will use the Delta smelt case as the vehicle for TVA‘s permanent interment.

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