Court's role in ESA science in spotlight in Calif. water war

Federal appeals court judges debated their role in scientific policymaking yesterday as they dove into the long, bitter fight over the fate of an endangered fish in California's Sacramento-San Joaquin River Delta.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, sitting in Las Vegas, queried state and federal officials, water users and environmentalists closely on claims that have been brewing since the tiny delta smelt was listed as threatened under the Endangered Species Act in 1993.

The main issue at stake is how much water the fish need to survive. A federal biological opinion in 2008 limited pumping from massive state and federal diversion projects in the delta, which supplies water to about 25 million Californians.

That plan was partially overturned in 2010 with an opinion by Judge Oliver Wanger of the U.S. District Court for the Eastern District of California, who said the Fish and Wildlife Service's plan to protect the fish was "sloppy science" (Greenwire, Dec. 15, 2010). FWS has until December 2013 to come up with a new plan.

The panel yesterday focused mainly on one avenue of the debate -- whether Wanger was right to admit extra expert testimony in appeals of the 2008 plan. Attorney Kate Poole of the Natural Resources Defense Council argued that the testimony brought on a "battle of the experts" that contributed to the overturning of the 2008 biological opinion.

"It was not the district court's job to figure out whether the science was right or wrong," Poole said.

The panel yesterday contemplated whether it was the court's responsibility to weigh the science. In the 2010 arguments, Wanger admitted testimony from witnesses that questioned whether FWS used the best available science in setting flow limits for rivers splitting off from the San Joaquin River just above the delta.

"This court, seems to me, was within its prerogative to seek out experts to explain exactly what was at stake here ... to help the court understand what the issues were and to sort of navigate that thicket," said Judge Morris Arnold of the 8th U.S. Circuit Court of Appeals, who was sitting by designation.

Judge Johnnie Rawlinson disagreed. "There was a lot of back and forth" between experts, she said. "Our role is to determine whether the path that the agency took can be discerned. ... We don't necessarily have to know whether or not the scientific theories were impeccably adhered to."

Rawlinson also raised the fact that Wanger, who stepped down last year, rejected the 2008 plan for its scientific underpinnings and a 2005 version for not protecting the smelt enough. "The agency can't win for losing in this scenario," she said.

A lawyer for the water users argued that the decisions were not inconsistent. "What he found was the agency so far is having trouble in getting it right," said Greg Wilkinson, who represented 27 public agencies that distribute water from the state-run part of the delta pumping system.

An attorney representing the state Department of Water Resources also objected to the Fish and Wildlife Service's plan on the grounds that the agency's scientists did not understand certain modeling programs for calculating salinity as well as the state did.

"We submit a lesser level of deference should be given to the Fish and Wildlife Service," said Clifford Lee. The 2008 plan specified a range of locations at which low salinity levels would be required, which, he said, is "not supported by any evidence in the record."

Judge Jay Bybee questioned Lee sharply. "Is it the Department of Water Resources' position that salinity is not related to the health of the smelt?" he said.

Commenting after the arguments, Poole said she was heartened by the judges' incisive questioning.

"I think they were focused as they should be on what is the court's role here," Poole said. "How do we review this in a way that makes sure they're using good science but gives appropriate deference to the agency?"

Poole also cited Bybee's questioning on deference. "I think they understand," she said, "that the law requires them to give some deference to FWS because they're the expert biologists."

Last month, the court dismissed a second delta smelt-related issue that was originally scheduled to be argued yesterday: an appeal of an injunction imposed by Wanger that prevented the federal government from restricting water diversions as much as it had wanted to in fall 2011. The injunction has now expired and the government chose not to appeal, but environmental groups did.