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Wanger Court: Environmental 'Bad Faith' Exposed Again!

The enviros continue to try to shove the 'bad science' down our throats with the help of the courts

Sep 17, 2011


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Wanger Court:  Environmental "Bad Faith" Exposed Again!

We hope the days of environmentalists showing up in court and winning just because of thier supposed good intentions are coming to an end.  At least Federal Judge Oliver Wanger is seeing through the dishonesty.  The enviros continue to try to shove the 'bad science' down our throats with the help of the courts, but they are having some trouble lately.  And that's good news.  Look at the words used in today's decision:  "inconsistent", "misleading", "bad faith", "that of a zealot", "unworthy of belief", and finally Judge Wanger expressed sadness and "remorse for our justice system for what has been placed before the court."

Please read the decision recap by the Pacific Legal Foundation below, and if you want a lesson on X2 continue to the next article by CalWatchdog's Wayne Lusvardi.  

X2 stay request denied; court finds feds to have engaged in "bad faith"

Author: Brandon Middleton

At today's X2 hearing, Judge Wanger denied the request by the federal government and NRDC to stay his injunction of the controversial X2 regulatory measure pending appeal, although he did suspend the injunction until the middle of October due to favorable water conditions.  But that wasn't the real story.

Throughout today's hearing, the court expressed its dismay over the testimony put forth by the federal agencies in charge of the X2 action.  Based on testimony that the court found to be inconsistent and misleading, Judge Wanger determined that the federal agencies acted in bad faith in their attempt to fully implement the X2 action.

A central problem was the federal government's claim that failing to keep X2 at 74 km east of the Golden Gate Bridge would threaten the delta smelt with extinction, a claim that was plainly inconsistent with prior testimony given by the government.  The court painstakingly went through numerous additional errors and omissions by the federal government, including its failure to reconcile its categorical objection to the court's injunction with its own recognition that locating X2 at points eastward would be a "reasonable intermediate action."

Judge Wanger found further that the manager in charge of federal delta smelt regulatory measures was "that of a zealot," making her "unworthy of belief."  He expressed sadness and "remorse for our justice system for what has been placed before the Court." The court concluded its hearing by finding that, as a whole, the federal agencies in this case are "unworthy of their public trust."


NEW: Sept. 16 is X-Day for Delta Smelt Case

Sept. 16 is X-Day in the Delta Smelt legal battle. I call tomorrow X-Day — sort of like D-Day in World War II — because it concerns the battle over X2 conditions in the California Delta.


Up to the early 20th century, X1 was made by nature and extended halfway across the state, from the Pacific Ocean to Stockton, where the Delta became an inland sea. Other years, it receded to around the city of Pittsburg on the greater San Francisco Bay.  X1 had nothing to do with the pumping of Delta water into the California Aqueduct from the Banks Pumping Plant where the Sacramento and San Joaquin Rivers come together.


X2 is a man-made line, or salt and fresh water mixing zone, than can be shifted by pumping on the Delta. A recent study conducted by the U.S. Fish and Wildlife service recommended that X2 be located in a zone near the city of Pittsburg on the west to the City on Antioch on the east in the upper Honker Bay of the greater San Francisco Bay — or about 74 to 81 yards from the Golden Gate Bridge — to protect the endangered Delta smelt.

On Sept. 9, the Federal government and the National Resources Defense Council requested a stay of the court’s ruling on the Delta smelt fall X2 action pending further appeal.  Their declarations can be found here and here.

Brandon Middleton of the Pacific Legal Foundation, a property rights advocacy group, said of the continued actions of the federal government and the NRDC:

“The court described the information in these declarations as a potential ‘game changer,’ but at the same time remarked that the testimony of the individuals who submitted declarations is ‘somewhat all over the map’based on the individuals’ prior submissions.”

On Sept. 16, Judge Oliver W. Wanger is set to rule on these requests.  The federal agencies and the Natural Resources Defense Council are apparently angling for a new judge on the case, as Wanger has announced his retirement; and the feds and the NRDC are maneuvering an appeal to go to the liberal Ninth Circuit Court of Appeals.

What X2 entails is dedicating 300,000 to 670,00 acre feet of water, depending on whether it is a dry or wet year, to push a few glorified minnows, called Delta smelt, a few miles westerly within the Delta-Bay.

At the lower figure, this would be enough water to supply the city of San Diego for one year; or at the higher number enough for the entire city of Los Angeles for one year.

Alternatively, it would irrigate 300,000 to 670,000 acres of farmland. It would at minimum lock up water storage equivalent to Lake Castaic or Clear Lake, or at maximum Lake Havasu on the Colorado River, to hypothetically preserve a fictional brackish mixing zone for a few minnow.

Court Decision

The Fish and Wildlife Service has contended in federal court that their ion of the location for the X2 line was based on “science.”  But Judge Oliver Wanger didn’t buy their so-called science.  Instead, upon cross-examination of the federal expert biologist, it was revealed that smelt exist at varying salinity levels in the Delta.  The smelt habitat ranges over 24 miles of the Delta, not just in only a single mixing zone.  What came out in the court proceedings is that the Fish and Wildlife service omitted 60 percent of the smelt that are outside the proposed mixing zone.

In his 140-page decision
on where the Delta X-2 line should be located, Judge Wanger gave a stern rebuke to the federal agencies testifying in the case:

“The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal. There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this ‘wet’ water year. The agencies still ‘don’t get it.’ They continue to believe their ‘right to be mistaken’ excuses precise and competent scientific analysis for actions they know will wreak havoc on California’s water supply.” 

Judge Wanger went further and found that the “credibility” of the U.S. Bureau of Reclamation scientist who testified in the case was in “question” and “his scientific objectivity is compromised by inconsistency.”  Wanger also called out the U.S. Fish and Wildlife Agency’s “intransigence,” and said “the agency’s ‘lack of data’ apologetic is the premise for the agency to do what it chooses without addressing Plaintiff’s objections.”

Science Not on Anyone’s Side

In making decisions on Delta water policy, “science” is used like those who say, “God is on our side.”  But science is on nobody’s side because nature is not even on the side of the environmentalists’ vision of a restored Delta. If it were not for mankind, the Delta will one day be destroyed by nature, just as it was created by nature.  The Sacramento Delta is an inland sea and one of the few landforms at the mouth of a river in the world that flows inland as well as to the sea.

Science is not on anyone’s side in the debate about the Delta.  And the so-called “science” about the Delta does not replace cultural judgments about what mix of ecosystems we collectively value most:

Δ  — A cold water Delta with salmon

Δ  — A warmer-water Delta with catfish, bass

Δ  — An entirely ocean-water Delta with halibut, striper, perch or shellfish

The Delta will work as an ecosystem any of the above ways. What makes salmon superior to catfish?  Or smelt superior to bass or fish that feed on waste matter on the river bottom?

What proportionate mix of ecosystems do we value? Science can’t make that decision.  That decision can only be made culturally and politically.

As the Delta X2 Line court decision indicates, the huge number of bureaucratic natural resource agencies at both the federal and state levels are not neutral technocrats as much as they are stakeholders whose jobs, livelihoods, careers and political turf are dependent on enlarging the freshwater ecosystem of the Delta along with recreational fishing and tourism interests.

Government has reached a state in California, both at the federal and state levels, where it is Master, not a tool or servant.  To politicians of the Party of the Government, there is a politically created constituency of environmentalists, university scientists, green advocacy organizations and green lawyers whose only goal is to be an obstruction to the agricultural and commercial sectors of society to enrich themselves for specious benefits to the environment or society.

The Delta X2 Line case indicates that government agencies can no longer be trusted to serve as disinterested parties in contested environmental issues. And liberal politicians have too many votes to lose if they can’t deliver jobs and benefits to their green constituency.

That bureaucratic technocrats and their consultant scientists held the entire Southern half of the state and farmers hostage by an adjudicated drought from 2007 to 2010 indicates there is something drastically wrong with California’s environmental laws. But don’t expect deregulation because politicians depend on those laws for votes and political power.

What the Delta X2 line represents is not how many Delta smelt are threatened with extinction, but how many bureaucrats and their sycophants are endangered.

Environmental bureaucracies create and evolve themselves and then want us to write an insurance policy against their extinction.

How do we rescue the Delta, our farms and our economy from the bureaucrats and environmentalists?

Continued Bureaucratic Belligerence and Obstruction

Both the California and federal governments are replete with scientifically unjustifiable environmental regulations and bureaucracies. The Delta X2 case helps us get a window into self-serving bureaucracies that are imbued with an ideology of moral superiority for their missions.  It is time to say “game over” to the bureaucracies that are drying up our farms and our economy in California. But to do this we first must see them for what they are.

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