Federal appeals court upholds delta smelt protections

In a big win for a little fish, a federal appeals court Thursday upheld delta smelt protections that have cut deliveries of Northern California water to the Southland and the San Joaquin Valley.
(University of California)

In a big win for a little fish, a federal appeals court Thursday upheld delta smelt protections that have cut deliveries of Northern California water to the Southland and the San Joaquin Valley.

A panel of the U.S. 9th Circuit Court of Appeals concluded in a 2-1 decision that a number of environmental provisions that federal and state water contractors have disputed as ill-founded were in fact justified. In effect, the court backed pumping limits.

Written by Judge Jay S. Bybee, a George W. Bush appointee, the opinion is a major blow to the agricultural and urban agencies that have spent years challenging endangered species protections that have curbed water exports from the Sacramento-San Joaquin Delta.

The delta smelt, a finger-size delta native that is teetering on the edge of extinction, is at the center of the battle. Found only in the delta, the smelt has been maligned by Central Valley GOP congressmen as a worthless, stupid little fish and defended by environmentalists as an emblem of the ecological collapse of the largest estuary on the West Coast.

The appeals panel reversed most of a 2010 U.S. District Court ruling that faulted a number of key smelt protections and accused U.S. Fish and Wildlife Service biologists of ignoring the “best science available.”


The 9th Circuit judges called the 2008 fish and wildlife document that spelled out the smelt protections “a ponderous, chaotic document, overwhelming in size” and “a bit of a mess.” But the opinion went on to say that it “was adequately supported by the record and not arbitrary and capricious.”

Bybee acknowledged the “enormous practical implications of this decision” but said they were prescribed in the Endangered Species Act, “when Congress determined that ‘these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.’''

The appeals decision took some swipes at the lower court’s handling of the case by U.S. District Judge Oliver Wanger, who has since retired from the bench. Wanger, wrote Bybee, pitted experts against one another and then resolved “their contrary positions as a matter of scientific fact.”

The Westlands Water District, a huge San Joaquin Valley irrigation district that has waged a long, expensive legal battle against the pumping limits, said it was “extremely disappointed” in the decision and was considering asking for an en banc review by an 11-judge panel of the 9th Circuit.

“We continue to believe that Judge Oliver Wanger got it right,” Westlands general manager Thomas Birmingham said in a statement.

A spokesman for the Metropolitan Water District of Southern California, which imports supplies from the delta, said the district would have no comment until it had reviewed the decision.

Terry Erlewine, general manager of the State Water Contractors, said the decision “will make it more difficult for water agencies to recover from the present drought by preventing us from capturing and storing excess water when it is available in wet years.”

In addition to seeking another review in the 9th Circuit, water contractors could appeal to the U.S. Supreme Court.

But Kate Poole, an attorney for the Natural Resources Defense Council, which led the appeal of Wanger’s ruling, said the 9th Circuit opinion may put an end to the seemingly endless smelt litigation.

“We have a decision now that’s written by one of the more conservative members of the 9th Circuit, Judge Bybee, joined by one of the more liberal members,” she said. “It should put the questions about protections — at least for the delta smelt and the estuary — to rest.”

The appeals court has yet to rule on a related case involving protections for migrating salmon that deals with similar issues.

Judge Johnnie B. Rawlinson, appointed by President Clinton, concurred with most of Bybee’s opinion. The dissenting judge was Morris S. Arnold, an 8th Circuit judge appointed by President George H.W. Bush and sitting on the 9th Circuit. Arnold agreed with Wanger’s analysis, which he called “thorough and well-reasoned.”

The majority opinion did uphold one part of Wanger’s ruling: That the U.S. Bureau of Reclamation must conduct an environmental review to determine the effects of the smelt protections on the agency’s delta operations.