Delta smelt regs vindicated? Not so fast, my friend!
Author: Brandon Middleton
At the NRDC Switchboard blog, Doug Obegi discusses recent good news concerning the delta smelt:
For several years, fishermen, conservationists, and scientists have argued that if we provide adequate freshwater flows to the Bay-Delta, native fish populations would begin to rebound. In 2007, a federal court required pumping restrictions to protect native fisheries in the Delta, and this year, the CVP and SWP provided sufficient flows in September and October to restore habitat for delta smelt (what's known as the Fall X2 action).
Not surprisingly, it worked – fish populations rebounded. Last week, the California Department of Fish and Game quietly announced that the September surveys for Delta fisheries showed a huge rebound for delta smelt, as well as substantial increases for most of the other species assessed by the survey. The Fall Midwater Trawl survey provides the best estimate of the abundance of delta smelt and the September value of 50 was the highest level seen in more than a decade. Indeed, this year’s September index was higher than the annual index (combined values of the Sept-Dec monthly indices) since 2005. This big increase in the population of delta smelt is great news for a species that just a few years ago many biologists predicted might go extinct in the very near future.
The new population survey is a welcome development, but in no way does it show that the invalidated delta smelt regulations are in fact justified. For one thing, the Fall X2 action has not even been implemented this year, notwithstanding Obegi's suggestion that "it worked" in 2011.
More generally, Obegi's assertion that delta smelt population abundance increased "only after the protections of the 2008 biological opinion were implemented" is misleading. The delta smelt is an annual species, and it has been well over a year since any of the biological opinion's restrictions were actually implemented. In other words, the abundance increase in the Fall Midwater Trawl survey occurred without any smelt-related restrictions in place, an inconvenient truth left unmentioned by Obegi. (For more on the recent delta smelt population survey and how favorable water conditions (and not regulatory restrictions) contributed, check out this article in the Contra Costa Times.)
Perhaps most curious is Obegi's effusive praise for the federal scientists who were found by a federal court to have acted in bad faith in the delta smelt litigation:
These results vindicate agency scientists who testified that providing adequate fall habitat (Fall X2) and reducing entrainment at the pumps would allow this native fish to begin to recover. For the men and women at the Department of the Interior who have toiled under incredible political pressure for the past several years, this year’s September FMWT results show that these protections are paying off.
We are grateful to the scientists at the Department of the Interior, DFG, and other state and federal agencies who have had to bear the brunt of these attacks; to the agency managers who have stood up for their scientists; and to their lawyers at the Department of Justice who have defended the agency from unjust attacks. In particular, these data should put to rest the unjustified and unreasonable attacks on two Department of the Interior scientists, attacks that former federal court judge Oliver Wanger has acknowledged, "have been somewhat misconstrued and blown out of proportion," and were made on "exceedingly limited grounds."
Putting aside that this charitable expression of gratitude stands in sharp contrast to NRDC's disdain for the Department of the Interior in other cases, there is no support for Obegi's claim that the delta smelt X2 scientists have been vindicated. Judge Wanger found these scientists gave impeaching and opportunistic testimony regarding the need to set the X2 salinity measure precisely at 74 km east of the Golden Gate Bridge. Sure, the bad faith finding was limited to the X2 testimony, but the court's conclusion that the federal scientists "performed in a way that is unworthy of their public trust" speaks volumes of the entire regulatory regime put in place by the U.S. Fish and Wildlife Service. It's also worth noting that the federal attorneys in charge of defending the Service staffers submitted a motion in the Ninth Circuit last week seeking to dismiss the Service's appeal of Judge Wanger's X2 injunction–that's not exactly a sign of vindication, if you ask me.
Certainly, the improvement in the delta smelt population survey is encouraging, but the suggestion that this somehow exonerates the federal government's unlawful actions in this case could not be further from the truth.
(blog post title with apologies to Lee Corso)
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›