Power of Experts in Smelt Case Faces Scrutiny

LAS VEGAS (CN) - At its latest hearing California water allocation and the endangered delta smelt, the 9th Circuit focused on whether the lower court improperly held a "battle of the experts."

Read Courthouse News' Environmental Law Review.

The case went before a three-judge panel in Las Vegas on Monday for a cross-appeal on a ruling that found scientific flaws in the 2008 delta smelt biological opinion put forth by U.S. Fish and Wildlife Service.

That biological opinion found that the operation of two water projects in California put the delta smelt at jeopardy.

The Bureau of Reclamation launched the Central Valley Water Project to provide irrigation and drinking water to the drought-plagued San Joaquin Valley.

When the government restricted pumping to protect the smelt, local water authorities said the restrictions would destroy orchards and bankrupt farmers.

But U.S. District Judge Oliver Wanger found in a massive 225-page ruling that the agency "acted arbitrarily and capriciously" and did not "use the best science available" in trying to shield smelt populations by restricting water flow to the Central Valley.

At the appellate hearing, Judge Johnnie Rawlinson noted the case's "long and tortured history," and emphasized that the court must determine whether science supports a government agency's decision.

"Unfortunately we have the task of trying to look at all of this scientific evidence and make a determination as to whether the agency has fulfilled its obligation under NEPA to take a hard look at all this science and whether or not the results of the scientific process should be approved," Rawlinson said later, abbreviating the National Environmental Policy Act. "And so in doing that the District Court in this case thought it appropriate to consult with other experts."

But the National Resources Defense Council said this admission of too many experts is "where the District Court went very wrong."

Despite the narrow exceptions that the District Court can use to depart from the record, Wanger considered 61 declarations submitted by the government's opponents at summary judgment, NRDC attorney Katherine Poole said

Justice Department attorney Robert Oakley said this reliance on the "battle of the experts" failed to give adequate deference to the government.

Rawlinson said the District Court proceedings were "very unusual."

"It's almost like a mini-trial," Rawlinson said.

Greg Wilkinson, an attorney for the state water contractors, disputed that a "battle of the experts" occurred, but Rawlinson quickly interrupted as Wilkinson tried to "correct misstatements that were made by" the government and NRDC attorneys.

"In a way it did," Rawlinson said, noting with a laugh that she "read the record" and that it looks like a "classic battle of the experts."

Wilkinson told the court that one project manager "indicated that this biological opinion was the most complex and lengthy biological opinion undertaken by the Fish and Wildlife Service ever."

"For the court to fully understand the technical terms and the complex subject matters that were being dealt with in this biological opinion, the court determined that it was essential to retain its own experts," Wilkinson said.

But Rawlinson countered that there is a difference in judge calling an expert to explain complicated theories for a judge, "as opposed to having competing affidavits as to which science is more persuasive and which theory should have been utilized to come to a conclusion."

A decision is expected from the 9th Circuit in a couple months.

Judge Jay Bybee and Judge Morris Arnold, sitting by designation from the 8th Circuit, also sat on the panel with Rawlinson.

For more information on the case, Courthouse News has copies of the government's brief, the NRDC's brief and a brief from the water authorities.

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