December 20, 2010

Zingers from Judge Wanger

By Zingers from Judge Wanger

Author:  Damien M. Schiff

Last week, Judge Oliver Wanger of the Eastern District of Sacramento overturned the Delta Smelt biological opinion imposing severe water cutbacks on Central Valley farms and towns.  The opinion is filled with sharply worded rebukes of the Service's errors.  In this post, we catalogue those zingers, with our emphases added.

"It is undisputed that application of a quantitative life cycle model is the preferred scientific methodology. Based on the preponderating expert testimony, FWS had the time and ability to prepare the necessary life-cycle model. FWS made a conscious choice not to use expertise available within the agency to develop one. A court lacks authority to require completion of a life-cycle model. In light of uncontradicted expert testimony that life-cycle modeling is necessary and feasible, FWS's failure to do so is inexplicable."

"FWS nowhere explains its decision in the BiOp to use gross salvage numbers in Figures B-13 and B-14, and does not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. See Doc. 633-1 at 10 (Dr. Thomas Quinn, a 706 Expert with expertise in fisheries biology, estuarine ecology, and fish migration and movement, see Doc. 394 at 2, stated: "it is not clear why such an adjustment [of salvage to population size] was not made for the data examined in this report."). This was arbitrary, capricious, and represents a failure to utilize the best available science in light of universal recognition that salvage data must be normalized. This significant error must be corrected on remand."

"FWS nowhere explains in the BiOp or the AR how the sporadically significant population-level effects identified in Kimmerer (2008) factored into the quantitative analysis that led to the -5,000 cfs OMR flow limit imposed in RPA Action 2. Nowhere does the BiOp or the record explain how the analysis in Fig. B-13 "works in tandem" with the purported numeric results of Kimmerer (2008), and nowhere does the BiOp or the record state that Fig. B-13 was intended to create an "operational metric" to manage pumping to avoid "certain raw entrainment numbers." This is an abdication of the duty to satisfy the basic APA requirement that the agency "articulate[] a rational connection between the facts found and the choice made." Ariz. Cattle Growers' Ass'n, 273 F.3d at 1236."

"In light of the known and material resulting disparity, FWS's decision to use a Calsim II to Dayflow comparison to quantitatively justify its jeopardy and adverse modification conclusions, without attempting to calibrate the two models or otherwise address the bias created, was arbitrary and capricious and ignored the best available science showing that a bias was present."

"Based on known adverse water supply consequences of operating the Projects in a "constrained" manner, it is inexplicable that FWS did not provide a clear and rational explanation of how the ITS is set. A court, "cannot infer an agency's reasoning from mere silence," and "an agency's action must be upheld, if at all, on the basis articulated by the agency." See PCFFA, 426 F.3d at 1091. Because no such explanation or basis is provided, the entire ITS must be remanded for the required justifying explanation."

"The BiOp recognizes that "delta smelt abundance trends have been driven by multiple factors, some of which are affected or controlled by CVP/SWP operations and others that are not. Notably, the BiOp acknowledges the decline of delta smelt cannot be explained solely by the effects of CVP/SWP operations." BiOp at 203. The BiOp's conclusions about the cause and effect of other stressors are ambiguous. Plaintiffs' quest for precision in delinking Project operations as the primary driver of smelt decline is understandable in view of the ambiguity of the BiOp."

"The BiOp erroneously failed to consider available information regarding the magnitude of striped bass predation on delta smelt, with the likely result of erroneously attributing to the Projects, impacts independent of Project Operations."

"It is undisputed that numerous stressors, including ammonia and other toxics, food limitation, predation, the introduction of non-native species and other factors, all have adverse impacts to delta smelt. See e.g., BiOp at 182-84 (discussing other stressors). Yet, the BiOp concludes that Project Operations are "a primary factor influencing delta smelt abiotic and biotic habitat suitability, health, and mortality." BiOp at 189 (emphasis added). FWS rationalizes this conclusion, at least in part, by attributing the impacts of many of the "other stressors" to the Projects. This attribution has not been justified, nor is it logical or explained by any science. Given that the impacts of regulating Project Operations are so consequential, such unsupported attributions (a result in search of a rationale) are unconscionable."

"Although nothing in the ESA mandates the use of quantitative analyses per se, the Peer Review's critique of the P. forbesi analysis cannot be separated from FWS's abandonment of its quantitative analysis. The Peer Review specifically criticized the use of fixed-location monitoring sites as part of the quantitative analysis. Rather than correct this problem, FWS's response was to abandon the quantitative analysis, choosing to advance the same, potentially flawed conclusion in a more subjective, qualitative analysis. This conduct suggests another unlawful, results-driven choice, ignoring best available science."

"The RPA Actions manifestly interdict the water supply for domestic human consumption and agricultural use for over twenty million people who depend on the Projects for their water supply. "Trust us" is not acceptable. FWS has shown no inclination to fully and honestly address water supply needs beyond the species, despite the fact that its own regulation requires such consideration."

"FWS has not yet demonstrated a willingness or capability to protect interests other than the species[.]"

"It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent over-appropriation of project water supplies for species protection. In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California's water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases."

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