More on X2: Asking for justification is not demonization

September 07, 2011 | By PACIFIC LEGAL FOUNDATION

Author: Brandon Middleton

John Bass offers a reply to my earlier post:

Brandon Middleton's response to my post about Judge Wanger’s last decision is titled "Trust us, we’re federal scientists." Why not make the title "Trust us, we’re scientists"? Seems to answer itself.

Not really.  The federal government says the Fall X2 action is based on the best available science (as required by the Endangered Species Act); the scientists for the water contractors and the California Department of Water Resources contend otherwise.  Lumping all the scientists together doesn't get us anywhere.

Bass also takes issue with the notion that the federal government should and must justify its decisions (the italicized language is from my original post):

Bass seems to want to live in a world where the feds can do what they want, when they want, and not be expected or required to explain their decisions. Fortunately, as Judge Wanger has recognized, "Trust us is not acceptable."

From whatever perspective, I cannot understand why any interest would find it productive to demonize those parts of a federal government that created, manage, subsidize, and are charged with finding a sustainable future for your world. "They" are not an enemy. They are you.

For my part, I fail to understand how asking the government to justify its decisions equates to demonization.  And it is unclear to me how not requiring the government to explain itself leads to anything but arbitrary decisionmaking, which is the antithesis of law.

Maybe that is the real problem here–the government takes unwarranted offense to legitimate questions and, as a result, dismisses these questions instead of achieving real progress.

This could be what Judge Wanger was getting at when the court called out the U.S. Fish and Wildlife Service for "agency intransigence."  The Service can say it doesn't have enough information to further investigate regulatory decisions, but this doesn't work when pertinent information is readily available, especially when the stakes are so high.   In the case of the X2 action, this is when the Service's "'lack of data' apologetic is the premise for the agency to do what it chooses without addressing Plaintiffs' objections."