September 16, 2011

X2 stay request denied; court finds feds to have engaged in "bad faith"

By X2 stay request denied; court finds feds to have engaged in "bad faith"

Author: Brandon Middleton

At today's X2 hearing, Judge Wanger denied the request by the federal government and NRDC to stay his injunction of the controversial X2 regulatory measure pending appeal, although he did suspend the injunction until the middle of October due to favorable water conditions.  But that wasn't the real story.

Throughout today's hearing, the court expressed its dismay over the testimony put forth by the federal agencies in charge of the X2 action.  Based on testimony that the court found to be inconsistent and misleading, Judge Wanger determined that the federal agencies acted in bad faith in their attempt to fully implement the X2 action.

A central problem was the federal government's claim that failing to keep X2 at 74 km east of the Golden Gate Bridge would threaten the delta smelt with extinction, a claim that was plainly inconsistent with prior testimony given by the government.  The court painstakingly went through numerous additional errors and omissions by the federal government, including its failure to reconcile its categorical objection to the court's injunction with its own recognition that locating X2 at points eastward would be a "reasonable intermediate action."

Judge Wanger found further that the testimony from the manager in charge of federal delta smelt regulatory measures was "that of a zealot," making her "unworthy of belief."  He expressed sadness and "remorse for our justice system for what has been placed before the Court." The court concluded its hearing by finding that, as a whole, the federal agencies in this case are "unworthy of their public trust."

Update: More analysis at the Kronick Moskovitz Tiedemann & Girard Natural Resources Blog.

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