March 25, 2014

Status quo for now in the Delta smelt case

By Damien M. Schiff Senior Attorney

Earlier this week, the district court in the Consolidated Delta Smelt Cases issued an order rejecting the request of the federal government and the environmental intervenors immediately to stop the ongoing remand ordered by Judge Wanger in 2011.  The court explained that, until the Ninth Circuit (which earlier this month overturned Judge Wanger’s decision invalidating the Delta smelt biological opinion) issues its “mandate,” the appellate court’s decision is not final and binding—meaning, Judge Wanger’s decision and the remand will remain in place for now.

Under the federal appellate rules, the mandate will not issue if a party seeks rehearing.  Hence, if rehearing is sought, the status quo may remain in place for some time to come.

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