September 10, 2012

Today's Delta smelt hearing: What you need to know

By Damien M. Schiff Senior Attorney

This morning the Ninth Circuit heard argument in the consolidated Delta smelt appeals.  At issue was Judge Oliver Wanger’s decision overturning the 2008 Delta smelt biological opinion, authored by the U.S. Fish and Wildlife Service.  The appeals raise extremely complex scientific and administrative law issues, and that complexity was made clear during the court of today’s hour-long hearing.

Arguing the government’s case in chief was DOJ attorney Robert Oakley.  Oakley’s presentation relied heavily on the general legal principles of deference to agency decision-making, particularly when that decision-making requires scientific or other technical expertise.  But at least some members of the panel—comprised of Ninth Circuit judges Johnnie Rawlinson and Jay Bybee, and Eighth Circuit Judge Morris Arnold (sitting by designation)—were unconvinced by Oakley’s theme of “trust us.”  Judge Arnold in particular demonstrated through his questioning his skepticism, at one point noting that the “best available scientific data” standard contained in the Endangered Species Act by its nature requires that the data be scientific.  Thus, a district court would be unable to discharge its obligation of reviewing the administrative record for arbitrary and capricious decision-making if it had to defer to data and methodologies that lacked the most basic elements of scientific rigor.  Judge Arnold’s questioning was particularly significant given that Oakley’s presentation tried to cast doubt on the district court’s judgment primarily by attacking the district court’s use of expert testimony, a practice admittedly unusual for administrative record cases.

Judge Arnold also seemed to reveal some sympathy with the district court’s holding that the Bureau of Reclamation had violated the National Environmental Policy Act by failing to conduct any environmental impact analysis before implementing the water cutbacks that the Delta smelt biological opinion prescribed.  “How is NEPA being honored?”, queried Judge Arnold, if Reclamation is allowed to implement the cutbacks without first having to comply with NEPA.

In my estimation, Oakley did a poor job today advocating for the government.  His air was a little too professorial, and oddly enough not sufficiently adversarial, to be effective.  He spent a good portion of his time recounting the (rather) byzantine procedural and administrative history of the case, observations that may be anecdotally interesting but certainly irrelevant to the issues on appeal.  Also, he tried to achieve too much:  to prove his case at argument on points that, because of their complexity, can be made (if at all) only in briefing.  A good example of this failing came in Oakley’s attempted defense of the Services combined use of two computer modeling programs, called DAYFLOW and CALSIM.  I think it fair to say that no one in that courtroom fully understood how these programs work, but the Court could at least grasp Judge Wanger’s critique of the Service’s use of these models—namely, because their inputs and parameters are different, using them in tandem without any attempt at reconciliation of the differences will lead ineluctably to arbitrary answers.

But the environmentalists, supporting the government here, faired no better.  To be fair, Kate Poole of the Natural Resources Defense Council was handicapped from the beginning by Oakley’s consumption of most of the allotted argument time.  Even so, Poole seeed to waste what precious little time she had by criticizing the district court’s excessive use of experts.  Note the italicized adjective.  NRDC did not appear to object, at argument at least, to the court’s appointment of experts for itself, but rather only to the court’s approval for the parties to provide their own experts as well.  This tack struck me as odd, principally because the court’s own experts were nearly as damning in their criticism of the biological opinion as were the water users’ experts.  Indeed, in response to Poole’s contention that it was not the district court’s obligation to decide whether the Service’s science was “good,” Judge Arnold noted that the “need to calibrate the models” was a problem getting at not just whether the data were the best, but rather whether the data were scientific at all.

Next up was Greg Wilkinson, representing the State Water Contractors.  Judge Rawlinson grilled him hard on the district court’s use of experts.  Clearly for Judge Rawlinson, Judge Wanger’s actions were unusual and (probably) unwarranted.  Indeed, in response to Wilkinson’s assertion that Judge Wanger deferred to the agency when appropriate and followed TVA v. Hill’s admonition that species preservation enjoys the highest of legislative priorities, Judge Rawlinson dryly observed, “Well, I don’t know about that.”  She also expressed sympathy with the Service, noting that Judge Wanger had overturned an earlier Delta smelt biological opinion because it was not protective enough of the smelt, and subsequently overturned another biological opinion because it protected the smelt too much.  But Wilkinson adroitly noted that Judge Wanger did not rule that the new smelt biological opinion went too far in protecting the smelt.  Rather, Judge Wanger had ruled that the Service had not demonstrated that the water cutbacks were necessary to help the smelt.  Judge Arnold came to the water users’ help again, though, noting that the Service’s own regulations allow it to take into account the impact on human beings, but that the Service had failed to follow these regulations in drafting the biological opinion.

Next up came Daniel O’Hanlon, representing other water districts.  O’Hanlon presented the water users’ cross-appeal issues:  whether NEPA applied to the Service, and whether the Service had to segregate the effects of nondiscretionary components of the water projects from their discretionary components.  The Ninth Circuit judges seemed by and large uninterested in these arguments.  One might say that the court was even hostile to some of the argument posed the third attorney for the water users, Clifford Lee, representing the California Department of Water Users.  Lee put much stock in the fact that the Department developed the DAYFLOW and CALSIM models, but Judge Bybee noted that simply because the Department created the models does not preclude other agencies, like the Service, from learning how to use them properly and thereby merit deference.  Judge Bybee was also concerned with the argument that salinity levels have no adverse impact on the smelt.  After intense questioning, Lee backed hedged, conceding that salinity may have an impact at times on the smelt, but not during the fall months (which the biological opinion presumes).

The appeal has been submitted, so now we wait for an opinion, which will likely be several months from now.

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