Smelt Defenders Fight Water Project in the 9th

     (CN) – Government lawyers told the 9th Circuit it would cause “chaos” to renegotiate dozens of water projects that environmentalists say relied on faulty science.
     The fight against the Department of Interior and Fish and Wildlife Service dates back to 2005 when the Natural Resources Defense Council (NRDC) and other environmental groups first demanded a new biological assessment and halt of proposed changes to the irrigation project that would pump more water out of the San Francisco and San Joaquin River Delta.
     Opponents said the project poses a threat to the delta smelt, a tiny fish native to those waters that was declared endangered in 1993, and that the governmement bowed to “intense political pressure” in finding otherwise.
     U.S. District Judge Oliver Wanger found the biological opinions for 2004 and 2005 unlawful and ordered the agencies to conduct a new review.
     As the service filed a new biological opinion in 2008, the environmentalists filed another suit, challenging the 41 Central Valley water contracts that were based on the old biological reviews.
     Wanger dismissed the environmentalists’ suit for lack of standing and failure to prove abuse of discretion. He said the NRDC could not “establish a causal connection between these contracts and harm to the delta smelt.”
     A three-judge panel of the 9th Circuit affirmed in 2012, and the court granted an en banc rehearing earlier this year.
     Arguing before the full panel last week, NRDC attorney Barbara Chisholm said the ultimate outcome of the biological opinion dispute was irrelevant to the current water project contracts, which are based on the unlawful 2004 opinion.
     “Are you asking us to just order the bureau to reopen all of the contracts that have previously been renewed and renegotiate each and every one of them?” Judge Richard Tallman asked.
     Chisholm responded that should be “one of the possibilities” if the cases is remanded. She said the environmentalists are asking for a “reconsultation” on the contracts that are based on a valid opinion, which hasn’t happened yet.
     Judge N.R. Smith said the contracts were entered in to based on an opinion that was “valid at the time,” and he asked Chisholm why he shouldn’t just let the District Court “sort this out.”
     Chisholm agreed that the lower court should decide the merits of which biological opinion is lawful, but the appeals court should reverse Wanger’s ruling that the environmentalists don’t have standing and the Fish and Wildlife Service did not abuse its discretion.
     She said there were a “wide variety” of remedies for renegotiating the contracts, including keeping the current contracts in place amid a new consultation or approval of interim contracts. This would ensure that “water continues to flow,” she said.
     Judge Milan Smith interrupted: “The bottom line is you want the contract voided. You need to start from scratch from your perspective.”
     Judge M. Margaret McKeown asked about the statutory foundation for a reconsultation. Chisholm responded that statute requires consultations on all of the agency’s actions. She stressed again that there were several options such as consulting on terms of the current contracts and then writing a biological opinion based on those contracts or waiting until the 2008 opinion is either validated or struck down.
     Chisholm told the court it need not decide the remedy for the invalid contracts, but should nevertheless find that the environmentalists have standing to make the case.
     “Clearly we have standing,” Chisolm argued. “We’ve alleged an injury to the smelt that’s directly caused by the delivery of water pursuant to these contracts.”
     Justice Department attorney Robert Oakley, representing the federal defendants, told the court that “measures to protect the smelt are in place.” He said that the Fish and Wildlife Service “wisely” did not go through on a contract-by-contract basis and consult for the protection of the smelt, but looked overall protections such as pumping restrictions and releases of water during wet years.
     Judge Johnnie B. Rawlinson asked whether the government was “supposed to look at the cumulative effects of the contracts before deciding what measures to implement.”
     Oakley said the Service had a “different perspective.”
     Judge N.R. Smith asked if the court upheld the environmentalists’ standing and challenge to agency discretion, would Oakley agree that the federal agencies “violated the Endangered Species Act in renewing the contract?”
     Oakley paused and replied, “Yes.” He then attempted to explain, but Smith laughed and interrupted, “Yes is what I heard!”
     Chief Judge Alex Kozinski said his colleague had asked a “very good question.” Kozinski asked Oakley what would happen next if the court found the environmentalists did have standing and the agencies abused their discretion.
     “I don’t think the contracts should be automatically invalidated by this court,” Oakley said. “If those contracts are gone, we have chaos.”

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