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Appeals Court rules in favor of Delta smelt
Trent Orr, Earthjustice staff attorney, said, “Today’s decision strongly reinforces the requirement of the Endangered Species Act that if, the Bureau of Reclamation has any discretion in negotiating long-term water contracts to benefit a listed species, the agency must exercise that discretion to ensure that the contracts do not harm the species. The court found that the Bureau does have such discretion."
Photo of Delta smelt courtesy of California Department of Water Resources.
Photo of Delta smelt courtesy of California Department of Water Resources.
Appeals Court rules in favor of Delta smelt
by Dan Bacher
Fish advocates scored a legal victory on April 16 when a federal court threw out earlier rulings that failed to consider endangered Delta smelt, an indicator species found only in the San Francisco Bay-Delta Estuary.
An eleven-judge panel of the U.S. Ninth Circuit Court of Appeals unanimously ruled that the federal Bureau of Reclamation was required to consult with the U.S. Fish and Wildlife Service regarding long-term California water contracts that would impact the endangered Delta smelt.
The court concluded that the Bureau’s renewal of several dozen water supply contracts that divert large quantities of water from the Bay-Delta violated the Endangered Species Act, according to a statement from Earthjustice.
"The federal Bureau of Reclamation was required to engage in ... consultation because, in renewing the challenged contracts, it retained 'some discretion' to act in a manner that would benefit the delta smelt," Judge Milan Smith wrote for the panel.
The court sided with Earthjustice and its clients California Trout, San Francisco Baykeeper, Friends of the River, The Bay Institute and the Natural Resources Defense Council (NRDC).
Trent Orr, Earthjustice staff attorney, said, “Today’s decision strongly reinforces the requirement of the Endangered Species Act that if, the Bureau of Reclamation has any discretion in negotiating long-term water contracts to benefit a listed species, the agency must exercise that discretion to ensure that the contracts do not harm the species. The court found that the Bureau does have such discretion."
"This ruling provides an opportunity to revisit these 25- and 40-year contracts and include provisions that encourage water conservation and make realistic allotments of water to protect adequate in-stream flows to restore the health of the entire Delta ecosystem," he concluded.
Damien M. Schiff, attorney for the Pacific Legal Foundation, said the Foundation had filed an amicus brief arguing that the Bureau did not retain sufficient discretion to trigger the obligation to consult with the Fish & Wildlife Service on the impacts to the Delta smelt of the water contract renewals.
"The Court reasoned that the Bureau still has discretion to dictate price and timing, factors which could be used to help the smelt, e.g., pricier water means less will be used means more for the smelt, or water made available only at certain times of the year when the smelt’s needs are less pressing," said Schiff. "Bottom line is that this decision will simply spread the pain of Delta smelt mitigation to more farmers and others dependent on Central Valley Project water."
BACKGROUND: In 2005, Earthjustice filed a lawsuit challenging a George W. Bush-era biological opinion that stated the operations of the federal and state water projects in California would have no effect on the delta smelt. At that time, the Bureau of Reclamation, which runs the Central Valley Project, was in the process of renewing long-term water contracts, based on the challenged biological opinion’s conclusion that the water projects posed no harm to the delta smelt.
A United States District Judge invalidated that biological opinion as legally flawed and scientifically unsound. A new biological opinion on the delta smelt was approved in 2008 that found that the operations of the federal and state water project would harm the imperiled smelt and the Delta ecosystem it relies upon and required that the projects’ operations be modified to avoid that harm.
In 2008, Earthjustice challenged the largest water contracts that were renewed based on the invalidated biological opinion. The challenged contracts account for over 85% of the total amount of water allocated by the renewed long-term contracts. The federal district court ruled that the Bureau had no duty to comply with the Endangered Species Act in renewing those contracts, but today the 9th Circuit overturned that ruling.
"The ruling will not alter operations of the Central Valley Project or State Water Project this year, but it will provide a sorely needed reopening of the contracts to revisit their terms and make sure that they are amended as necessary to make sure that they do not jeopardize the survival and recovery of the delta smelt," according to Earthjustice.
by Dan Bacher
Fish advocates scored a legal victory on April 16 when a federal court threw out earlier rulings that failed to consider endangered Delta smelt, an indicator species found only in the San Francisco Bay-Delta Estuary.
An eleven-judge panel of the U.S. Ninth Circuit Court of Appeals unanimously ruled that the federal Bureau of Reclamation was required to consult with the U.S. Fish and Wildlife Service regarding long-term California water contracts that would impact the endangered Delta smelt.
The court concluded that the Bureau’s renewal of several dozen water supply contracts that divert large quantities of water from the Bay-Delta violated the Endangered Species Act, according to a statement from Earthjustice.
"The federal Bureau of Reclamation was required to engage in ... consultation because, in renewing the challenged contracts, it retained 'some discretion' to act in a manner that would benefit the delta smelt," Judge Milan Smith wrote for the panel.
The court sided with Earthjustice and its clients California Trout, San Francisco Baykeeper, Friends of the River, The Bay Institute and the Natural Resources Defense Council (NRDC).
Trent Orr, Earthjustice staff attorney, said, “Today’s decision strongly reinforces the requirement of the Endangered Species Act that if, the Bureau of Reclamation has any discretion in negotiating long-term water contracts to benefit a listed species, the agency must exercise that discretion to ensure that the contracts do not harm the species. The court found that the Bureau does have such discretion."
"This ruling provides an opportunity to revisit these 25- and 40-year contracts and include provisions that encourage water conservation and make realistic allotments of water to protect adequate in-stream flows to restore the health of the entire Delta ecosystem," he concluded.
Damien M. Schiff, attorney for the Pacific Legal Foundation, said the Foundation had filed an amicus brief arguing that the Bureau did not retain sufficient discretion to trigger the obligation to consult with the Fish & Wildlife Service on the impacts to the Delta smelt of the water contract renewals.
"The Court reasoned that the Bureau still has discretion to dictate price and timing, factors which could be used to help the smelt, e.g., pricier water means less will be used means more for the smelt, or water made available only at certain times of the year when the smelt’s needs are less pressing," said Schiff. "Bottom line is that this decision will simply spread the pain of Delta smelt mitigation to more farmers and others dependent on Central Valley Project water."
BACKGROUND: In 2005, Earthjustice filed a lawsuit challenging a George W. Bush-era biological opinion that stated the operations of the federal and state water projects in California would have no effect on the delta smelt. At that time, the Bureau of Reclamation, which runs the Central Valley Project, was in the process of renewing long-term water contracts, based on the challenged biological opinion’s conclusion that the water projects posed no harm to the delta smelt.
A United States District Judge invalidated that biological opinion as legally flawed and scientifically unsound. A new biological opinion on the delta smelt was approved in 2008 that found that the operations of the federal and state water project would harm the imperiled smelt and the Delta ecosystem it relies upon and required that the projects’ operations be modified to avoid that harm.
In 2008, Earthjustice challenged the largest water contracts that were renewed based on the invalidated biological opinion. The challenged contracts account for over 85% of the total amount of water allocated by the renewed long-term contracts. The federal district court ruled that the Bureau had no duty to comply with the Endangered Species Act in renewing those contracts, but today the 9th Circuit overturned that ruling.
"The ruling will not alter operations of the Central Valley Project or State Water Project this year, but it will provide a sorely needed reopening of the contracts to revisit their terms and make sure that they are amended as necessary to make sure that they do not jeopardize the survival and recovery of the delta smelt," according to Earthjustice.
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KEEP THE REALLY GOOD LAWS.
Laws that favour the eco-organic balances of the web-of-life are the greatest need nowadays, and can lead to the greatest turning of the tables, so even the U.S. Constitution can start to realize that the web-of-life it says it protects must be made to include the Plants, and Animals.
Not as big aggie, Megantic Oil sets exploitation as their only private property destruction as greatest profit for their private companies.
There is two agendas here 1) liberation and solidarity with the life that sustains us as specie, and 2) Greedy privatization for the one percent at the expense of the livabillity of the planets web-of-life, or the ninety-nine percent.
One for sustainability, and one for unsustainability. The two different agendas are irreconciable and in struggle against one and another.
It is important for all living things that the fight brings victory to the ecological organic balances of the planet's web-of-life. Like every thing alive the life of the planet can be killed and nix, nixed would attain nothing alive.
So please organize, educate, and occasionally agitate to continue the green ecological life sustaining society, and habitats we all depend on for our lives.
Workers of the world unite!! End pollution fraction, not endless fracking for more and more pollution. Ye yet have a world to win!!
Laws that favour the eco-organic balances of the web-of-life are the greatest need nowadays, and can lead to the greatest turning of the tables, so even the U.S. Constitution can start to realize that the web-of-life it says it protects must be made to include the Plants, and Animals.
Not as big aggie, Megantic Oil sets exploitation as their only private property destruction as greatest profit for their private companies.
There is two agendas here 1) liberation and solidarity with the life that sustains us as specie, and 2) Greedy privatization for the one percent at the expense of the livabillity of the planets web-of-life, or the ninety-nine percent.
One for sustainability, and one for unsustainability. The two different agendas are irreconciable and in struggle against one and another.
It is important for all living things that the fight brings victory to the ecological organic balances of the planet's web-of-life. Like every thing alive the life of the planet can be killed and nix, nixed would attain nothing alive.
So please organize, educate, and occasionally agitate to continue the green ecological life sustaining society, and habitats we all depend on for our lives.
Workers of the world unite!! End pollution fraction, not endless fracking for more and more pollution. Ye yet have a world to win!!
The court decision is the beginning of a process that should lead to a change of behavior on the part of the Bureau of Reclaimation. However, the intimidation of the executive branch by corporations and congress people since the 1980's has had an over riding detrimental impact on the protection of much of anything biological. In other words, if you want to keep your job in the government you contribute to decisions that help the corporate/business boys or you get another job or in some cases commit suicide. We have already seen an example or two of this hidden policy with the re-assignment of some of the BOR and FWS fisheries biologists just because they wanted to keep their integrity and not have their data arbitrarily changed.
The effectiveness of environmental policy has been seriously undermined over the past 30 years. So OK-What to do about it. Remember that you do not have to be a diploma carrying scientist to do some basic science. You can take water samples for pollution monitoring and O2 content etc and take lots of photographs. And don't forget the history of resource use.
There are fisherman around who used to fish the Delta when fish populations were higher and closer to being in balance. Get their stories. Look through the fish and game archives and get together in groups and remind the agencies and congress folks of the tremendous amount of natural production that has been lost at the hands of corporate business and how out of balance things have become. EG: one archive article form the old federal bureau of fisheries showed an estimate of 1 million chinooks using the McCloud river in the 1800's.
We are at a cross roads of what is more important? -the health of the nation at large or the economic wealth of the few. I just browsed through the Calif Dept of Health website and some other news data and found that the cancer rates in Shasta and Butte counties are among the highest in California. The cancer rate in Redding, CA is 11% (among the highest in the world) and yet the republicans and business oriented democrats want to weaken environmental regulation even further.
It's time to take names and kick butt.
The effectiveness of environmental policy has been seriously undermined over the past 30 years. So OK-What to do about it. Remember that you do not have to be a diploma carrying scientist to do some basic science. You can take water samples for pollution monitoring and O2 content etc and take lots of photographs. And don't forget the history of resource use.
There are fisherman around who used to fish the Delta when fish populations were higher and closer to being in balance. Get their stories. Look through the fish and game archives and get together in groups and remind the agencies and congress folks of the tremendous amount of natural production that has been lost at the hands of corporate business and how out of balance things have become. EG: one archive article form the old federal bureau of fisheries showed an estimate of 1 million chinooks using the McCloud river in the 1800's.
We are at a cross roads of what is more important? -the health of the nation at large or the economic wealth of the few. I just browsed through the Calif Dept of Health website and some other news data and found that the cancer rates in Shasta and Butte counties are among the highest in California. The cancer rate in Redding, CA is 11% (among the highest in the world) and yet the republicans and business oriented democrats want to weaken environmental regulation even further.
It's time to take names and kick butt.
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