Water Rights Dispute Has 9th Circ. Flummoxed

     SAN FRANCISCO (CN) – Against the backdrop of a 100-year California-wide drought, 9th Circuit Judge Richard Tallman told attorneys for the government, environmental groups and state water contractors that a quick decision over a long-running water-rights dispute in the Central Valley is unlikely.
     “Don’t stand by your phones too soon,” Tallman said just before he, Judge Johnnie Rawlinson and U.S. District Judge Thomas Rice, sitting by designation from Washington, filed out of the courtroom Thursday.
     The groups met before the three-judge panel to resolve a four-year legal dispute over a 2009 biological opinion by the National Marine Fisheries Service declaring that two state water projects would jeopardize endangered salmon species in the San Francisco Bay Delta, thus prompting pumping restrictions aimed at protecting the species.
     Contractors argued that the restrictions on the Central Valley and State Water projects placed an undue burden on state water contractors who were already facing cuts to their water supplies from drought but still had to supply water to California residents.
     In 2010 U.S. District Judge Oliver Wanger said the government’s failure to examine the biological opinion’s potentially negative effects on people and their environment violated the National Environmental Policy Act. This opinion met with a challenge by a host of environmental groups, the United States Bureau of Reclamation, the National Marine Fisheries Service and other government agencies.
     Department of Justice attorney Ellen Durkee said the panel should look at the case the same way a panel did in reversing Wanger’s ruling in a similar water dispute centered around protections for the delta smelt. Wanger had ruled that, while pumping water from the Sacramento-San Joaquin River Delta would have hurt the smelt, it did not justify pumping restrictions.
     The appeals court decision upheld the science behind the biological opinion that called for a protection plan for the fish under the Endangered Species Act. The 9th Circuit remanded the case back to the District Court to rewrite Wanger’s decision.
     “Obviously the present case should be approached through the lens of the delta smelt decision,” Durkee told the panel Thursday, adding that Wanger had abused his discretion by allowing expert declarations from both sides to battle it out over the best science.
     “The delta smelt decision held that the court overstepped its bounds by making the district court proceeding into an open record forum for debating merits of the Delta smelt opinion,” she said. “The same thing happened in this case.”
     Tallman had a problem with the abuse-of-discretion argument. “But we’re dealing with a judge and all the parties who have lived with this litigation now for years, maybe a decade or more,” the judge said. “There is a history behind this litigation. Judge Wanger couldn’t be human if he’s – he’s not making this decision in a vacuum, he’s been making it based on what he knows from years of handling these cases. And how, as a reviewing court, we can parse through this record to determine whether or not he abused his discretion is a difficult task.”
     Durkee said: “The court does not need to parse through the record. I think that the correct approach would be to do what the court did in Delta Smelt, to proceed to review the record without all these declarations.”
     William Sloan, attorney for the Metropolitan Water District of Southern California, naturally opposed the idea that Delta Smelt should be controlling, saying it involves a “different biological opinion, managing a different species.”
     Tallman questioned Sloan on that point. “But there’s a substantial mount of overlap, is there not? We’re about the same river systems and same water projects,” he said.
     “When you’re talking about limiting water flows , and the amount of water that can be exported, you’re theoretically benefiting all of the species are you not, not just a singular species,” he continued.
     Sloan replied: “With respect to this biological opinion, the agency was specifically addressing the species here.”
     Rawlinson pointed out that the different analysis in the Delta smelt case is based on the same science as the present case.
     “I respectfully disagree,” Sloan said.
     “What’s different about the science used in this case that was not used in the Delta smelt case?” Rawlinson asked.
     Sloan said the salmon biological opinion used “a similar approach, but using a different species.”
     Shaking his head, Tallman said, “But they’re swimming in the same water and they’re being sucked into the same pumps. You’re losing me on the point you’re trying to make in distinguishing Delta smelt from this case.”
     “With respect to this case, the agency conducted an analysis specific to salmon,” Sloan replied.
     “They’re all swimming in the same stream, counsel,” Tallman said, laughing.
     Tallman seemed disinclined to remand the disputed salmon biological opinion back to the District Court and ultimately back to the National Marine Fisheries Service for review, which Deputy Attorney General Clifford Lee, seemed to think appropriate.
     “Affirming the District Court ruling would only require a modest review of the biological opinion,” Lee said.
     “You say a modest review, but every time we send one of these things back it takes years before we see the thing again, and in the meantime, the climate does what the climate does and either we have wetter years or sadly now drier years and the problem gets worse rather than better,” Tallman said, throwing up his hands. “Be careful what you ask for. I’m not sure the relief you’re asking for is going to help anybody, including the species and the fisherman and farmers and people who are depending on this water to drink.”
     He added: “I’m really wondering what you think the court is going to be able to do that the scientists and the people who have to live with this system understand far better than judges.”

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